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ELRCAllowedCause No 2556A of 2012· [2019] KEELRC 439 (KLR)

Wycliff Otieno Ochillo v Kenya Airways Limited [2019] KEELRC 439 (KLR)

Employment and Labour Relations Court
18 October 2019
ANAbuodha Jorum Nelson
1,625 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ordered Kenya Airways to pay a sacked worker because it couldn't prove his dismissal was justified.

What this practically means

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Executive summary

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The Claimant, employed by Kenya Airways Limited as a Materials Officer – Stock Room from 8th January 2007, was summarily dismissed with effect from 21st December 2009 after he transacted seventeen tins of hardener on 18th October 2009 using outdated picking slips. He contended the dismissal was unjustified because he acted on his supervisor's directive to clear system anomalies. The respondent alleged the picking slips were outdated, the hardener was not supported by valid pick items, and aircraft 5Y-KQP was not in Nairobi on the date of the transaction, resulting in unaccounted-for stock worth Kshs. 232,529.40. The Claimant responded to a show cause letter, appeared before a disciplinary panel represented by his union, and appealed unsuccessfully. The respondent's investigating witness admitted he never attended the disciplinary hearing, never interviewed those who issued the posted items, and that the supervisor never explicitly denied assigning the Claimant the task of updating the system. The Court was satisfied by an email of 5th June 2009 in which the supervisor instructed staff to clear pick items. Applying the rule that the employee bears the burden of showing unfair termination while the employer must prove the validity of its reasons, the Court found the Claimant discharged his evidentiary burden while the respondent failed to do so. It held the termination unfair and awarded one month's salary in lieu of notice (Kshs. 52,204) and eight months' salary as compensation (Kshs. 417,632), with costs and interest subject to taxes and statutory deductions.

Key legal issues

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01

Unfair termination

Holding

The termination of the Claimant was unfair

Reasoning

The Claimant was summarily dismissed for transacting outdated picking slips. His explanation that he was directed by his supervisor, Mr. Mawora, to clear the system was corroborated by an email of 5th June 2009 and by the respondent's own witness who confirmed Mawora never explicitly denied assigning the task. The respondent failed to exhibit evidence of stock levels to show any loss.

p. 2
02

Evidentiary burden

Holding

The Claimant discharged his evidentiary burden; the respondent failed to discharge its burden of proving validity of the reasons for termination

Reasoning

The employer alleged loss of seventeen tins of hardener but did not exhibit any evidence of stock levels. Its investigating witness admitted not interviewing those who issued the items and that Mawora had not explicitly denied authorizing the posting. The Court therefore found the claimant's explanation plausible.

p. 2

Legal principles established

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  • The burden to show that unfair termination has occurred rests on the employee while proof of the validity of the reasons for the termination is on the employer

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs. 52,204
  2. 2.Eight months' salary as compensation for unfair termination of Kshs. 417,632
  3. 3.Costs of the suit
  4. 4.Interest at Court rates on items (a) and (b), subject to taxes and statutory deductions
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes

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, "Wycliff Otieno Ochillo v Kenya Airways Limited [2019] KEELRC 439 (KLR)", Case Analysis (2019). Cause No 2556A of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/439/eng@2019-10-18

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