Anthony Aseka v Haggai Multi Cargo Handling Services [2019] KEELRC 1055 (KLR)

Employment and Labour Relations Court

12 July 2019

MOMaureen Onyango

1,187 words in judgment

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The bottom line

A Kenyan court ruled it illegal to fire a worker for asking that his workplace accident be reported, awarding him over Kshs.240,000.

What this practically means

Executive summary

The claimant, employed by the respondent from 1st February 2008 in its Plastic department on a weekly wage, averred that his services were terminated on 10th April 2014 after he requested the respondent to issue a notice of an occupational accident on his behalf. He sought declarations that the termination was null and void, unlawful and unfair, plus one week's salary in lieu of notice, 12 months' salary for unfair termination, leave pay, costs and interest. The respondent admitted the engagement but asserted that a copy of the signed contract was issued, that the claimant received numerous verbal and written warnings for carelessness, and that his consolidated salary covered all entitlements. The matter proceeded on 19th October 2018 in the respondent's absence. The court framed two issues: validity of the termination procedurally and substantively, and entitlement to reliefs. Relying on section 47(5) of the Employment Act, it held the employer bears the burden of justifying the grounds for termination. The respondent produced no evidence of compliance with Sections 41, 43 and 45 - no warnings, no hearing, no termination letter - and its reply amounted to bare denials. Applying Walter Ogal Anuro and Francis Mbugua Boro, the court held the termination failed both the substantive and procedural fairness tests. Under Section 46(h), terminating the claimant for requesting a report of his occupational accident was not a valid reason. The court declared the termination unfair, awarded 10 months' salary (Kshs.131,700) as compensation under Section 49, one week's salary (Kshs.4,160) and leave pay (Kshs.104,832), totalling Kshs.240,692, with costs to the claimant and interest from the date of judgment.

Key legal issues

Whether the termination was procedurally and substantively valid

Holding

The termination was unfair both procedurally and substantively. The respondent, though alleging written and verbal warnings, produced no evidence of compliance with Sections 41, 43 and 45 of the Employment Act; no hearing was held and no termination letter issued. Terminating the claimant for requesting a report of his occupational accident was not a valid reason under Section 46(h).

Reasoning

Section 47(5) places the burden of justifying the grounds for termination on the employer. The respondent filed only a reply with bare denials, adduced no evidence, and did not appear at the hearing. It pleaded warnings but produced none, referred to no hearing, and issued no termination letter. Section 46(h) expressly prohibits termination for initiating a complaint or legal proceedings against the employer, and the claimant's request that his occupational accident be reported fell squarely within that protection.

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Whether the claimant was entitled to the reliefs sought

Holding

Partly. Compensation of 10 months' salary (Kshs.131,700), one week's unpaid salary (Kshs.4,160) and leave pay (Kshs.104,832) were awarded, totalling Kshs.240,692, with costs and interest from the date of judgment.

Reasoning

In the absence of any evidence rebutting the claimant's averments, the court exercised its discretion under Section 49 of the Employment Act to award compensation, factoring in the length of service (2008 to 2014), the manner of termination, and the reason for termination being one expressly prohibited by the Employment Act. The unpaid week's salary and leave claim were uncontroverted and awarded as prayed.

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Legal principles established

For a termination to be fair there must be both substantive justification and procedural fairness
The burden of proving unfair termination rests on the employee, while the burden of justifying the grounds for termination rests on the employer
A hearing is mandatory as part of procedural fairness under Section 41(2) of the Employment Act
Initiating a complaint or legal proceedings against an employer is not a valid ground for termination under Section 46(h) of the Employment Act

Court orders

1.Declaration that the termination of the claimant's employment was unfair both procedurally and substantively
2.Award of compensation for unfair termination of 10 months' salary being Kshs.131,700
3.Award of salary for one week worked and not paid, being Kshs.4,160
4.Award of leave pay in the sum of Kshs.104,832 as prayed
5.Total award to the claimant of Kshs.240,692.00
6.Respondent to pay the claimant's costs
7.Interest to accrue from the date of judgment

Authorities

Legislation

Employment ActSection 41
Employment ActSection 41(2)
Employment ActSection 43
Employment ActSection 45
Employment ActSection 46(h)
Employment ActSection 47(5)
Employment ActSection 49

Cases cited (4)

Kennedy Nyanguncha Omanga Vs Bob Morgan Services Limited
(2013) eKLR
Augustine Peter Obirika Vs Card Centre Limited
(2012) eKLR
Walter Ogal Anuro –v- Teachers Service Commission
(2013) eKLR
Francis Mbugua Boro –VS- Smartchip Dynamics Ltd
(2017) eKLR

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; claim for unfair termination)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Anthony Aseka v Haggai Multi Cargo Handling Services [2019] KEELRC 1055 (KLR)", Case Analysis (2019). Cause No 984 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1055/eng@2019-07-12

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