Zablon Akaliche Mukoshi v Mega Park (K) Ltd [2019] KEELRC 1733 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the claimant proved unfair termination under sections 41 and 45 of the Employment Act
The claim failed; the claimant did not discharge his burden under section 47(5) and the lapse of the fixed term contract was lawful
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.
Whether an employee issued a show cause notice may treat it as termination and refuse to attend work
No; a show cause notice is not termination and the employee must attend and respond
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.
Whether the claimant was entitled to the monetary claims for notice, leave, days worked and underpayments
All the monetary claims failed; terminal dues including leave pay and days worked were paid, and the underpayment claim lacked evidential foundation
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.
Legal principles established
#- 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
#- 1.The claims made are dismissed
- 2.Costs to the respondent
- Jurisdiction invoked
- Employment and labour relations jurisdiction under the Employment Act, 2007 (Employment and Labour Relations Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.