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Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in excerpt· [2018] KEELRC 2227 (KLR)

Daniel Muasa Ndaka v Techpak Industries Limited [2018] KEELRC 2227 (KLR)

Employment and Labour Relations Court
27 December 2017
2,080 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan employer who fires a worker orally, without written process, risks losing in court and paying notice pay, compensation, costs and interest.

What this practically means

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Executive summary

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The Claimant sued alleging he was employed as a general worker from about 2003, rising to packing supervisor, and was dismissed on 26th February 2014 after the factory manager, Vijesh, asked him to write a resignation letter over alleged mislabelling of disposable plates on the night of 24th February 2014. He declined and was orally dismissed without notice or hearing. He sought declarations, notice pay, salary for the balance of contract, service pay, and damages. The Respondent denied the dismissal, asserting the Claimant was on a two-year contract, caused the mislabelling, and absconded on 25th February 2014, breaching the contract; it counterclaimed for Kshs. 18,400/- as one month's salary in lieu of notice. The Claimant testified he was told to leave and not return; the Respondent's HR manager conceded there was no record the Claimant received the letter seeking an explanation and no show-cause or warning letter was exhibited. Applying the balance of probabilities as articulated in JRS Group Limited v Kennedy Odhiambo Andwak, the court found the Claimant's oral dismissal more probable than abscondment, noting the absence of documentation expected under Section 41 of the Employment Act. The Claimant was awarded one month's salary in lieu of notice (Kshs. 20,976/-), two months' salary as compensation (Kshs. 41,952/-), costs, interest from filing, and a certificate of service. The counterclaim was dismissed with no order as to costs. Reliefs such as salary for the balance of contract and service pay were not awarded.

Key legal issues

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01

Whether the Claimant was dismissed or absconded

Holding

The court found the Claimant was orally dismissed after declining to write a resignation letter

Reasoning

The Claimant testified he was asked by Vijesh to write a resignation letter and told to leave and not return. The Respondent's witness confirmed the Claimant was asked to account for mislabeling and never returned. There was no warning letter, show cause notice or letter seeking explanation exhibited. The Claimant's handwritten letter of 26th February 2014 was probably a response to oral threats, after which an oral dismissal took place.

p. 3
02

Whether the termination was procedurally fair under Section 41 of the Employment Act

Holding

The process was not documented and the requirements of Section 41 were not met

Reasoning

There was no letter of warning after the Claimant's commitment letter, nor any letter seeking explanation or show cause exhibited. The Respondent's witness conceded there was no record the Claimant received the letter seeking an explanation. The lack of documentation pointed to an oral dismissal contrary to the process expected under Section 41.

p. 3
03

The Respondent's counterclaim for one month's salary in lieu of notice

Holding

Dismissed

Reasoning

Having found that the Claimant was dismissed by the Respondent and did not unilaterally terminate the contract, the foundation for the counterclaim that the Claimant absconded and breached the contract failed. The counterclaim was dismissed with no order as to costs.

p. 4

Legal principles established

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  • In unfair termination claims the standard of proof is the balance of probabilities
  • Where the employer fails to document the termination process expected under Section 41 of the Employment Act, an oral dismissal is more probable than desertion by the employee

Court orders

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  1. 1.One month salary in lieu of notice, Kshs. 20,976/-
  2. 2.Two months' salary as compensation Kshs. 41,952/-
  3. 3.Costs of the suit
  4. 4.Interest on the sums in (i) and (ii) from the date of filing suit till payment in full
  5. 5.Certificate of service
  6. 6.The Respondent's counterclaim dismissed with no order as to costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (not expressly cited in excerpt)

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, "Daniel Muasa Ndaka v Techpak Industries Limited [2018] KEELRC 2227 (KLR)", Case Analysis (2017). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2227/eng@2018-01-16

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