James Buka Beja v Arm Cement (Formerly Known as Athi River Mining Limited) [2018] KEELRC 1927 (KLR)

Employment and Labour Relations Court

5 June 2018

LNLinnet Ndolo

936 words in judgment

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The bottom line

A Kenyan employer who claimed a worker resigned or deserted lost the case because it could not prove its story, paying 12 months' salary.

What this practically means

Executive summary

The Claimant, employed by the Respondent from April 1999, claimed compensation for unfair termination and terminal benefits following the alleged termination of his employment on 20th January 2015. He sought one month's salary in lieu of notice, unpaid leave for 16 years, public holidays pay for 16 years, compensation for unfair termination, costs and interest. The Respondent admitted employment but denied termination, asserting the Claimant voluntarily resigned by letter dated 11th February 2015 and alternatively absconded duty from 14th February 2015; it said terminal dues were computed and paid. The Court framed two issues: whether unfair termination was proved and entitlement to remedies. It found the Respondent's defence unsupported by credible evidence: the resignation letter was disowned by the Claimant and the Senior Human Resource Officer who allegedly received it was not called as a witness; the issuance of two letters accepting the resignation was unexplained; and even if desertion occurred, the Respondent should have issued a notice to resume work before terminating on that ground, per Leonard Kahuthu Kibue v St. Hannah's Preparatory School & another [2018] eKLR. The Court adopted the Claimant's case of unlawful and unfair termination and awarded twelve months' salary (Kshs. 148,812) in compensation plus one month's salary in lieu of notice (Kshs. 12,401), totaling Kshs. 161,213, with interest at court rates from the date of judgment until payment in full. The leave pay and public holidays claims were dismissed, the former because a leave card showed leave was utilized up to 2014 and the latter for want of proof. The Claimant was awarded the costs of the case.

Key legal issues

Whether the Claimant's employment was unlawfully and unfairly terminated

Holding

The Court rejected the Respondent's defence of resignation and desertion and found the termination unlawful and unfair.

Reasoning

The Respondent relied on a handwritten resignation letter which the Claimant denied; the officer who received it (the Senior Human Resource Officer) was not called as a witness, leaving the defence unsupported by credible evidence. The Court also found it inexplicable that two letters accepting the resignation were issued. Further, even if desertion were proved, the Respondent should have issued a notice to resume work before terminating on grounds of desertion, and no such step was taken.

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Whether the Claimant was entitled to the remedies sought

Holding

Twelve months' salary in compensation and one month's salary in lieu of notice were awarded; leave pay and public holiday claims were dismissed.

Reasoning

In assessing compensation, the Court took into account the Claimant's length of service (from 1999 to 2015) and the Respondent's conduct prior to termination, awarding the maximum equivalent of twelve months' gross salary. Notice pay was awarded as no notice was given. Leave pay failed because a leave card showed leave had been utilised up to 2014, and the public holidays claim was unproved.

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Legal principles established

Where an employee is alleged to have deserted duty, the employer must issue a notice to resume work before termination on the ground of desertion can be considered

Court orders

1.Judgment entered in favour of the Claimant: Kshs. 148,812 as 12 months' salary in compensation for unfair termination
2.Kshs. 12,401 being one month's salary in lieu of notice
3.Total award of Kshs. 161,213 to attract interest at court rates from the date of delivery of judgment until payment in full
4.Claimant awarded the costs of the case

Authorities

Cases cited (1)

Leonard Kahuthu Kibue v St. Hannah's Preparatory School & another
[2018] eKLR

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction over unfair termination and terminal benefits claims (statutory basis not expressly cited in the judgment text)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "James Buka Beja v Arm Cement (Formerly Known as Athi River Mining Limited) [2018] KEELRC 1927 (KLR)", Case Analysis (2018). Cause No 56 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1927/eng@2018-06-05

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