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ELRCPartially AllowedCause No 304 of 2017· [2019] KEELRC 854 (KLR)

William Maina Kariuki v Aegis Construction Company Limited [2019] KEELRC 854 (KLR)

Employment and Labour Relations Court
25 September 2019
NMNzioki wa Makau
1,265 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan employers who cannot prove a valid reason for firing someone in court must pay compensation, even if they never show up to defend the case.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Respondent as a driver from 21st April 2015 on road works along the Mweiga-Brookside-Kimathi University Road, sued for unfair termination and terminal dues. He averred that on 16th June 2017 his lorry KAG 079G broke down and, while he waited for the mechanic, a director accused him of siphoning diesel. The fuel attendant's tests allegedly confirmed no fuel had been siphoned, yet he was summoned to the head office and there informed his services were terminated without being given a chance to defend himself. He sought one month's salary in lieu of notice, 17 days' unpaid salary for June 2017, twelve months' salary as damages for unfair termination, service pay, costs and interest. The Respondent filed a defence denying the averments but adduced no evidence, its case being closed for want of a witness statement; in submissions it argued the Claimant had deserted employment. The court held that under Section 43 of the Employment Act the employer must prove the reasons for termination, failing which the termination is deemed unfair under Section 45(2). The Respondent failed to prove its reasons and the dismissal was unfair. As keeper of employment records, the Respondent did not dislodge the claim that the Claimant earned Kshs. 25,320/- monthly. The court awarded one month's salary in lieu of notice, 17 days' pay for June 2017, six months' salary for the unfair dismissal, costs, and interest at court rates from the date of judgment until payment in full. The claims for twelve months' damages and service pay were not granted. It is so ordered.

Key legal issues

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01

Whether the termination was unfair for failure to prove reasons

Holding

The dismissal was unfair because the Respondent failed to prove the reasons for termination as required by Section 43 of the Employment Act

Reasoning

Section 43 requires the employer to prove the reasons for termination, being matters the employer genuinely believed existed at the time. Although the Respondent raised an issue with the Claimant, as reflected in the letter of 16th June 2017, it adduced no evidence at trial, having filed no witness statement. Having failed to prove the reasons for termination, the dismissal was deemed unfair within the meaning of Section 45 of the Employment Act.

p. 2
02

Whether the Claimant proved his monthly earnings

Holding

The Claim on salary of Kshs. 25,320/- per month was not dislodged because the Respondent, as keeper of employment records, did not produce contrary records

Reasoning

The Claimant testified that his pay was between Kshs. 23,000/- and 24,000/- and produced a P9 tax form bearing the Respondent's stamp indicating pay of Kshs. 23,940/-. The Respondent adduced no evidence to contradict this. As the keeper of employment records, the Respondent failed to dislodge the claim that the Claimant earned Kshs. 25,320/- per month, and the court adopted that figure in computing the award.

p. 2
03

Whether the Claimant deserted employment as the Respondent contended

Holding

The court found the Claimant was dismissed, not that he deserted

Reasoning

The Respondent, in submissions, argued that the Claimant deserted employment and that no one terminated it. However, the Respondent adduced no evidence, and the uncontroverted testimony of the Claimant was that he was issued a letter dated 16th June 2017, presented himself at the head office as instructed, and was there notified of his dismissal. The court thus concluded that the Claimant was dismissed by the Respondent.

p. 2

Legal principles established

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  • In any claim arising out of termination of a contract, the employer bears the burden of proving the reason or reasons for termination, failing which the termination is deemed unfair under Section 45(2) of the Employment Act
  • As keeper of employment records, an employer who does not produce records to contradict a claimed salary is taken not to have dislodged the claim as to earnings

Court orders

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  1. 1.One month's salary in lieu of notice – Kshs. 25,320/-
  2. 2.17 days pay for June 2017 – Kshs. 14,348/-
  3. 3.6 months' salary for the unfair dismissal – Kshs. 151,920/-
  4. 4.Costs of the suit
  5. 5.Interest on the sums awarded at court rates from the date of judgment till payment in full

Authorities

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Legislation

  • Employment ActSection 43(1)
  • Employment ActSection 45
  • Employment ActSection 45(1)
  • Employment ActSection 45(2)
  • Employment ActSection 41
  • Employment ActSection 44(a)-(e)

Cases cited (1)

  • Shadrack Mwaniki Ngaru v Aegis Construction Limited
    [2018] eKLR
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court over a claim of unfair termination (admitted by the Respondent in its defence)

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, "William Maina Kariuki v Aegis Construction Company Limited [2019] KEELRC 854 (KLR)", Case Analysis (2019). Cause No 304 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/854/eng@2019-09-25

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