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ELRCPartially AllowedCause No 223 of 2018· [2019] KEELRC 253 (KLR)

Naomi Jelagat Ogero v Salina Rotich [2019] KEELRC 253 (KLR)

Employment and Labour Relations Court
28 November 2019
ANAbuodha Jorum Nelson
715 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The claimant, employed by the respondent from March 2007 as a cleaner at a constant salary of Kshs. 4,680, alleged that her services were terminated on 31st August 2017 without notice or payment in lieu, and further claimed underpayment, unpaid overtime and unpaid leave dues. The respondent, though served, neither entered appearance nor filed a response, leaving the claim uncontroverted. The court nonetheless held that the burden of proving unfair termination rests on the employee and that this burden is independent of the employer's default. The termination letter cited unspecified workplace changes the respondent had been advised to undertake, but the respondent never disclosed the nature of those changes or how they affected the claimant; the court held that such failure to disclose reasons amounts to unfair termination. The claims of underpayment failed because the claimant produced no evidence of her actual pay to compare with the minimum wage. The overtime and leave claims also failed: in ten years of service the claimant never alleged she had requested leave or overtime pay and been refused. The court criticised the practice of employees waiting until termination to raise years-old claims without evidence, warning that this could be an attempt to extract undeserved compensation and must be discouraged. The court awarded one month's salary in lieu of notice, service pay for nine years, six months' salary for unfair termination, and costs of the suit.

Key legal issues

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01

Unfair termination

Holding

Termination was unfair because the employer did not disclose the reasons for ending the claimant's services

Reasoning

The termination letter cited unspecified changes the respondent was advised to undertake. The respondent neither entered appearance nor filed a response, so the claim was uncontroverted, yet the claimant still had to establish unfair termination. The court held that where the employer fails to disclose the nature of the changes and how they affected the employee, the termination is unfair, entitling the claimant to six months' salary as compensation.

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02

Underpayment, overtime and leave claims raised after termination

Holding

Rejected for lack of evidence that the claims were raised during the employment

Reasoning

The claimant worked for ten years but produced no evidence that she had ever requested leave or overtime pay and been refused or ignored. The court observed a trend of employees accumulating such claims until termination and warned against using termination as an opportunity to claim large undeserved compensation. Such claims must be raised during the contract's existence.

p. 1

Legal principles established

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  • The burden of proving unfair termination rests on the employee, and the burden of proving reasons for termination rests on the employer; default by one party does not lessen the other's burden
  • Failure by an employer to disclose the reasons for termination amounts to unfair termination

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs. 4,680
  2. 2.Payment for complete years of service (9 years) of Kshs. 21,060
  3. 3.Six months' salary for unfair termination of service of Kshs. 28,080
  4. 4.Costs of the suit
  5. 5.Total award of Kshs. 53,820
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (unfair termination and employment benefits claims)

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, "Naomi Jelagat Ogero v Salina Rotich [2019] KEELRC 253 (KLR)", Case Analysis (2019). Cause No 223 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/253/eng@2019-11-28

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