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ELRCDismissedCause Number 765 of 2012· [2018] KEELRC 2257 (KLR)

Ephraim Owino Bunyasi v Secucentre Limited [2018] KEELRC 2257 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
16 February 2018
ANAbuodha J. N.
1,039 words in judgment
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The bottom line

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A Kenyan court dismissed a security guard's unfair termination claim because he failed to prove it, showing employees must produce consistent, credible evidence.

What this practically means

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Executive summary

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The claimant, a security guard employed by the respondent from April 2005 at a monthly salary of Kshs 4,305, alleged that on 25th September 2011 his supervisor asked him to stop work and go home until recalled, and that he was never recalled, amounting to constructive dismissal. He sought terminal dues and salary for September 2011, which he said went unpaid. The respondent denied the dismissal, asserting that the claimant was uncooperative and insubordinate; it contended that on 22nd September 2011 he refused redeployment to PCEA Kangemi to cover for a sick colleague, insulted his supervisor, and abandoned his employment voluntarily. The respondent also denied writing a recommendation letter annexed by the claimant, alleging forgery reported to police. The claimant testified and called no further evidence; the respondent called its driver and supervisor, who described the redeployment and the claimant's refusal to work at the new site. The court held that the burden of proving wrongful dismissal or unfair termination rests on the employee, and the employer's duty to justify termination does not lessen that burden. The claimant produced no evidence of attempting to resume duties. A recommendation letter dated 11th October 2011 stated the claimant worked until April 2005, contradicting his pleaded employment until September 2011, which the court found rendered the forgery allegation plausible. Finding the claimant's pleadings, evidence and documents inconsistent and the burden undischarged, the court dismissed the claim with costs. Judgment was delivered at Nairobi on 16th February 2018 by Abuodha J. N.

Key legal issues

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01

Burden of proof in unfair termination claims

Holding

The employee bears the burden of proving unfair termination or wrongful dismissal; the employer's duty to justify termination does not shift or lessen the employee's burden

Reasoning

The court held that although the employer must prove or justify the reasons for dismissal, this does not absolve the employee of proving that dismissal occurred. The claimant alleged constructive dismissal but produced no evidence of any attempt to resume duties or of the respondent's response, so the claim failed on proof.

p. 2
02

Credibility of documentary evidence

Holding

Inconsistencies between the claimant's pleadings, oral evidence and documents rendered the recommendation letter plausibly a forgery and failed to discharge the burden of proof

Reasoning

The letter dated 11th October 2011 stated the claimant worked until April 2005, while the claimant pleaded employment until September 2011 - an inconsistency of almost six years. This contradiction supported the respondent's assertion that the letter was a forgery and undermined the claimant's credibility.

p. 2

Legal principles established

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  • The burden of proving wrongful dismissal or unfair termination rests on the employee, and the employer's separate duty to justify termination does not lessen the employee's burden

Court orders

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  1. 1.The claim is dismissed with costs
  2. 2.It is so ordered
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (memorandum of claim under the Employment Act regime)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ephraim Owino Bunyasi v Secucentre Limited [2018] KEELRC 2257 (KLR)", Case Analysis (2018). Cause Number 765 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2257/eng@2018-02-16

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