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ELRCPartially AllowedNot stated in the judgment· [2018] KEELRC 1696 (KLR)

Mbarak Mwabega v Standard Rolling Mills Ltd [2018] KEELRC 1696 (KLR)

Employment and Labour Relations Court
22 February 2018
1,337 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court ruled the employer unfairly fired a worker who claimed he was told to stop reporting, and awarded him Kshs.127,000.

What this practically means

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Executive summary

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This was a first-instance claim before the Employment and Labour Relations Court at Mombasa for unfair termination of employment and unpaid terminal dues. The Claimant testified that he was employed in 2012 and worked continuously until 21.11.2015, when the Shift Manager, Mr. Simon Mwaniki, told him not to report to work again, the decision having been made by Branch Manager Mr. Sadeep on account of alleged theft of store items. The Respondent, through its Personnel Officer and a trade union official, denied the unfair termination and asserted that the Claimant voluntarily deserted his employment, and that he refused an offer to resume work. The court identified two issues: whether the Claimant was unfairly terminated or deserted employment, and whether he was entitled to the reliefs sought. Holding that the burden under Section 47(5) of the Employment Act lay on the employee, the court nevertheless found the desertion defence unsupported, noting the Respondent's failure to call Mr. Mwaniki and Mr. Sadeep to rebut the Claimant's account. The Respondent also failed to justify the reason for termination or prove a fair procedure as required by Sections 41, 43, 45 and 47, and Section 41's mandatory hearing was not accorded. The court declared the termination unfair and awarded one month's salary in lieu of notice (Kshs.11,960), eight months' compensation (Kshs.95,680) and leave pay (Kshs.19,360). The overtime and public holiday claims were dismissed for want of particulars and evidence. Judgment was entered for the Claimant in the sum of Kshs.127,000 plus costs and interest.

Key legal issues

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01

Whether the Claimant was unfairly terminated or voluntarily deserted his employment

Holding

The Claimant proved on a balance of probability that he was terminated by the Respondent through Supervisor Mr. Simon Mwaniki on 21.11.2015 and did not desert his employment.

Reasoning

The Respondent alleged voluntary desertion but adduced no evidence to support it. It did not call the two officers (Mr. Simon Mwaniki and Mr. Sadeep) who, on the Claimant's evidence, told him not to report back to work, nor did Mr. Sadeep deny the allegation that he told the Claimant to look for a job elsewhere. Calling them would have been the easiest way to disprove the Claimant's account. Their absence left the Claimant's version uncontroverted and it was accepted on a balance of probability.

p. 2
02

Whether the termination was unfair under Sections 41, 43, 45 and 47 of the Employment Act

Holding

The termination was unfair because the Respondent proved neither a valid and fair reason nor a fair procedure.

Reasoning

Under Section 45(2), a termination is unfair if the employer fails to prove it was grounded on a valid and fair reason and effected through a fair procedure. The Respondent gave no evidence to justify the reason for termination as required by Sections 41, 43, 45 and 47, and did not prove it followed a fair procedure. Section 41 imposes a mandatory pre-termination hearing, which was not accorded to the Claimant. The dismissal therefore failed both the substantive and procedural fairness tests.

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03

Whether the Claimant was entitled to the reliefs sought

Holding

The declaration of unfair termination, one month's salary in lieu of notice, 8 months' compensation and leave pay were awarded; the overtime and public holiday claims were dismissed for want of particulars and evidence.

Reasoning

Having found the termination unfair, the court made the declaration sought and, under Section 49 of the Act, awarded one month's salary in lieu of notice and 8 months' salary as compensation, taking into account the Claimant's over 3 years of service and the absence of proven misconduct contributing to the termination. The leave claim was awarded as prayed at Kshs.19,360. However, the claims for overtime and public holidays worked failed because the Claimant did not particularise or adduce evidence in support of them.

p. 3

Legal principles established

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  • The burden of proving unfair termination lies on the employee who alleges unfair dismissal, under Section 47(5) of the Employment Act.
  • An employer who alleges desertion but fails to call the officers alleged to have dismissed the employee risks a finding against it; failure to call key witnesses supports the employee's version.
  • Under Section 41 of the Employment Act, the employer must, in mandatory terms, explain the reason for intended termination to the employee and afford him a hearing before termination.

Court orders

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  1. 1.Declaration that the termination of the Claimant's employment was unfair and unjust.
  2. 2.Award of Kshs.11,960 being one month salary in lieu of notice under Section 49 of the Employment Act.
  3. 3.Award of Kshs.95,680 being 8 months' salary as compensation for unfair termination.
  4. 4.Award of Kshs.19,360 for untaken leave (Kshs.460 x 21 leave days x 2 years).
  5. 5.Judgment for the Claimant in the sum of Kshs.127,000 plus costs and interest.

Authorities

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Legislation

  • Employment ActSection 47(5)
  • Employment ActSection 45(2)
  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 47
  • Employment ActSection 49
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 45, 47, 49)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mbarak Mwabega v Standard Rolling Mills Ltd [2018] KEELRC 1696 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1696/eng@2018-02-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.