Laban Kasievela v Jiangxi Zhqngmei Engineering Company Ltd [2019] KEELRC 1576 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Validity of reason and fairness of procedure in summary dismissal
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.
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.
Entitlement to terminal benefits
The claimant proved all terminal benefits claimed since no rebutting evidence was adduced.
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.
Legal principles established
#- 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
#- 1.4 months salary in compensation Kshs 96,588
- 2.Kshs 24,147 in lieu of one month notice
- 3.Kshs 10,463.70 being 13 days salary for the month of June 2016
- 4.Kshs 48,294 being payment in lieu of leave days not taken for the years 2015 and 2016
- 5.Kshs 36,330.50 being three years service gratuity calculated at 15 days salary for each completed year of service
- 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.Costs of the suit to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour disputes (Employment Act, 2007 reliefs claimed)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.