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ELRCPartially AllowedELR Cause No. 35 of 2017· [2019] KEELRC 1576 (KLR)

Laban Kasievela v Jiangxi Zhqngmei Engineering Company Ltd [2019] KEELRC 1576 (KLR)

Employment and Labour Relations Court of Kenya
30 May 2019
1,047 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a worker was unfairly fired without notice or a hearing and awarded him compensation, notice pay, leave pay and gratuity.

What this practically means

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Executive summary

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The claimant, a mechanic employed by the respondent from November 2012, sued for compensation for unlawful and unfair summary dismissal and terminal benefits: one month's salary in lieu of notice, arrear salary for July 2016, accrued leave for 2015 and 2016, and service gratuity. He testified that on 13 June 2016 he was dismissed without notice, without a reason, and without a hearing, shortly after the Bungoma Law Courts ordered the respondent to pay him Kshs 100,000 for a work injury; he suspected this triggered the dismissal. The respondent filed a statement of response denying unlawful dismissal and asserting that notice pay, service pay and leave had been given, but closed its case without calling any witness, leaving the claimant's testimony uncontroverted. The court framed two issues: whether the dismissal was for a valid reason and in accordance with fair procedure, and whether the claimant was entitled to the reliefs sought. The court found the dismissal unlawful, holding that sections 41, 43 and 45 of the Employment Act, 2007 were violated, and awarded compensation equivalent to four months' salary (Kshs 96,588) under section 49(1)(c) and (4), noting the claimant did not contribute to the dismissal, had not found alternative employment, and had no adverse work record. All terminal benefits claimed were proved unrebutted. Judgment was entered for the claimant totalling Kshs 162,825.50, with interest and costs of the suit.

Key legal issues

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01

Validity of reason and fairness of procedure in summary dismissal

Holding

The summary dismissal was not for a valid reason and no fair procedure was followed; Sections 41, 43 and 45 of the Employment Act, 2007 were violated.

Reasoning

The claimant was dismissed without notice, notice to show cause or a disciplinary hearing and was simply told to go home without any reason. The respondent closed its case without calling any witness, so the claimant's uncontroverted testimony stood proved on a balance of probabilities. Compensation was assessed under Section 49(1)(c) and (4), considering lack of contribution, non-payment of terminal benefits, absence of alternative employment and a clean work record over about three years and seven months of service.

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02

Entitlement to terminal benefits

Holding

The claimant proved all terminal benefits claimed since no rebutting evidence was adduced.

Reasoning

The claimant testified that he was not paid in lieu of notice, was not paid his salary for the final month, and had not gone on leave for 2015 and 2016. The respondent filed a statement of response but called no witness and adduced no evidence to rebut the claims. The court therefore awarded notice pay, accrued leave pay and service gratuity calculated at 15 days salary per completed year for three years, plus 13 days salary for the month of dismissal.

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Legal principles established

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  • A dismissal without notice, notice to show cause or disciplinary hearing, and without any reason given, violates Sections 41, 43 and 45 of the Employment Act, 2007 and entitles the employee to compensation under Section 49(1)(c) and (4).
  • Uncontroverted testimony of a claimant proves the claim on a balance of probabilities where the respondent adduces no evidence.

Court orders

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  1. 1.4 months salary in compensation Kshs 96,588
  2. 2.Kshs 24,147 in lieu of one month notice
  3. 3.Kshs 10,463.70 being 13 days salary for the month of June 2016
  4. 4.Kshs 48,294 being payment in lieu of leave days not taken for the years 2015 and 2016
  5. 5.Kshs 36,330.50 being three years service gratuity calculated at 15 days salary for each completed year of service
  6. 6.Interest at court rates from date of filing suit for items (b) and (e) and from date of judgment for item (a) till payment in full
  7. 7.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment ActSections 41, 43, 45
  • Employment ActSection 49(1)(c) and (4)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour disputes (Employment Act, 2007 reliefs claimed)

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, "Laban Kasievela v Jiangxi Zhqngmei Engineering Company Ltd [2019] KEELRC 1576 (KLR)", Case Analysis (2019). ELR Cause No. 35 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1576/eng@2019-05-30

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