Dennis Otieno Onyango v Mission in Action School and Children’s Home [2019] KEELRC 90 (KLR)
The bottom line
#A Kenyan court ruled a driver was unfairly terminated because his employer kept no written reasons or hearing records, but his own dishonesty cost him compensation.
What this practically means
#Executive summary
#Key legal issues
#How employment ended - resignation or termination
The alleged resignation did not end employment, as the claimant remained at work afterwards and the respondent continued engaging him.
The respondent relied on a resignation letter dated 18th July 2017, but the claimant remained at work after that date, including working on 24th August 2017. The police complaint over the visitor's book was only made on 11th September 2017, after the alleged misconduct. The court therefore found the resignation ineffective and the employment ended otherwise than by resignation.
Fairness of the termination under sections 41, 43 and 45 of the Employment Act
The termination was unfair: the respondent produced no written record of the reason for termination or proof of a hearing.
The alleged suspension to allow investigations had no material support, and the recall of the claimant for hearing or settlement was equally unsupported. The court found employment ended without any written record to assess the reasons, contrary to section 43, and without evidence of a fair chance to state a defence, contrary to section 45, rendering the termination unfair.
Underpayment claim
The claimant was underpaid; the tabulation of Ksh.32,499.20 in underpayments was correct against the prescribed wage plus 15% house allowance.
Applying the Regulation of Wages (General) (Amendment) Order, 2015, a driver in Njoro, Nakuru County was entitled to Kshs.11,279.85 plus 15% house allowance of Ksh.1,695, totalling Ksh.12,970.85. Against the paid wage of Ksh.10,840.00, the claimant's tabulation of underpayments at Ksh.32,499.20 was found correct.
Overtime claim and the employee's conduct
The overtime claim failed because the record book was manipulated and the claimant's tabulation erroneous.
The court scanned the record book and found repeated manipulation of reporting times, making the claimant dishonest and not believable, consistent with the police report over the stolen record. Even on his own figures, working 13 hours for 5 days instead of 8 hours for 6 days would yield only one hour of overtime consideration, and reporting hours were staggered, rendering his tabulation erroneous.
Legal principles established
#- Employment terminated without a genuine reason recorded and without a fair chance to be heard is unfair under sections 43 and 45 of the Employment Act, 2007.
- Where the employer fails to justify termination under section 43, notice pay and compensation arise, but the employee's contributory conduct under section 45(5) may defeat compensation.
- Evidence obtained by an employee through criminal means cannot be relied upon; the employee need only prove unfair termination under section 47(5).
Court orders
#- 1.Judgment entered for the claimant against the respondent for underpayments of Ksh.32,499.20
- 2.Notice pay of Ksh.13,309.80 awarded, from which the Ksh.22,085.00 already received shall be deducted
- 3.A certificate of service to issue in accordance with section 51 of the Employment Act, 2007
- 4.Each party to bear own costs
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Employment and Labour Relations Court (Cause filed under the Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dennis Otieno Onyango v Mission in Action School and Children’s Home [2019] KEELRC 90 (KLR)", Case Analysis (2019). Cause No. 417 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/90/eng@2019-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.