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ELRCDismissedCause No. 453 of 2016· [2019] KEELRC 1733 (KLR)

Zablon Akaliche Mukoshi v Mega Park (K) Ltd [2019] KEELRC 1733 (KLR)

Employment and Labour Relations Court of Kenya
14 March 2019
1,453 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed an unfair termination claim because a fixed term contract that expires on its own is not unfair dismissal, and the employee abandoned work after a show cause notice.

What this practically means

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Executive summary

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The claimant was employed by the respondent in the Dispatch section from 10th March, 2014 under successive fixed term contracts, the last expiring on 30th June, 2016. He later worked as a shift worker and alleged he was a folk lift driver. On 18th May, 2016 he was found chatting idly with a co-worker and issued a show cause notice requiring a response by 19th May, 2016. The claimant denied the allegations but did not reply to the notice or report back to work, contending he was sent away by the human resource manager. He sued for notice pay, pay for 19 days worked, annual leave pay, underpayments and compensation for unfair termination. The respondent maintained the claimant was employed under fixed term contracts, failed to answer the show cause notice, absented himself from work, and that the subsisting contract expired by operation of time without renewal, with terminal dues of ksh.8,946.00 paid. The respondent's human resource manager and the chief shop steward testified and produced the signed contracts. The court found the claimant abandoned his employment after the show cause notice, that a show cause notice is not termination, and that his failure to respond frustrated his own employment and possible renewal. The lapse of the fixed term contract could not found a claim for unfair termination. The claimant failed to discharge his burden under section 47(5) of the Employment Act. Leave pay had been paid in December 2014 and 2015, and the underpayment claim lacked evidence. All claims were dismissed with costs to the respondent.

Key legal issues

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01

Whether the claimant proved unfair termination under sections 41 and 45 of the Employment Act

Holding

The claim failed; the claimant did not discharge his burden under section 47(5) and the lapse of the fixed term contract was lawful

Reasoning

The court found the claimant failed to discharge his legal duty under section 47(5) of the Employment Act to prove unfair termination. The respondent's work records showed successive fixed term contracts signed by the claimant, the last ending 30th June, 2016. The claimant abandoned work after being issued a show cause notice and did not respond or return, frustrating his own employment and possible renewal.

p. 3
02

Whether an employee issued a show cause notice may treat it as termination and refuse to attend work

Holding

No; a show cause notice is not termination and the employee must attend and respond

Reasoning

The court held that a show cause notice is not termination of employment. Even where the claimant contested the allegations, reason demanded he attend and respond to the notice and state his case in defence. Failure to attend work on the grounds that a show cause notice had been issued only worked to frustrate his own employment.

p. 2
03

Whether the claimant was entitled to the monetary claims for notice, leave, days worked and underpayments

Holding

All the monetary claims failed; terminal dues including leave pay and days worked were paid, and the underpayment claim lacked evidential foundation

Reasoning

The court found the claimant was paid ksh.8,946.00 in terminal dues covering days worked and leave days, and the deposit was not challenged. Leave pay appeared in the December 2014 and December 2015 pay statements, so further leave claims would be unjust enrichment. The claimant's position was defined by the signed contracts as a dispatch worker, and using a folk lift did not make him a folk lift driver for wage purposes.

p. 3

Legal principles established

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  • A claimant bears the legal burden of proving unfair termination under section 47(5) of the Employment Act, 2007
  • Lapse of a fixed term contract by operation of time is not unfair termination and cannot be visited upon the employer
  • A show cause notice is not termination of employment; an employee should attend and respond to it and state his defence
  • An employee who fails to attend work after a show cause notice frustrates his own employment and possible contract renewal

Court orders

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  1. 1.The claims made are dismissed
  2. 2.Costs to the respondent

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 47(5)
Jurisdiction invoked
Employment and labour relations jurisdiction under the Employment Act, 2007 (Employment and Labour Relations Court Act)

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, "Zablon Akaliche Mukoshi v Mega Park (K) Ltd [2019] KEELRC 1733 (KLR)", Case Analysis (2019). Cause No. 453 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1733/eng@2019-03-14

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