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ELRCPartially AllowedNot stated in judgment· [2019] KEELRC 1793 (KLR)

Pius Owuor Ogao v Auto Hauliers (K) Limited [2019] KEELRC 1793 (KLR)

Employment and Labour Relations Court
9 April 2019
LNLINNET NDOLO
948 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer who fires a worker for desertion without first trying to reach them will lose an unfair termination case.

What this practically means

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Executive summary

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The Claimant, employed as an Assistant Mechanic from 1st February 2013 at a monthly salary of Kshs. 8,000, claimed compensation for unfair termination following the end of his employment on 15th March 2015 after a workplace injury and two weeks' absence. He sought notice pay, three years' leave pay, public holiday pay, and twelve months' salary in compensation. The Respondent admitted the employment but justified the termination on grounds of continuous absenteeism, producing a termination letter dated 31st March 2015 alleging desertion and lack of interest in the work. The Claimant testified that on reporting back after the injury he found his position taken over, and he was paid Kshs. 11,257 and sent away. The Respondent's General Manager and Accountant testified that a show cause letter had been delivered through a co-worker, Patrick Oluoch, who was not called as a witness. The Court framed two issues: the lawfulness and fairness of the termination, and entitlement to remedies. Holding that an employer alleging desertion must reach out to the employee before terminating, and finding no evidence of such efforts and no proof of the show cause letter, the Court found the desertion allegation unproved and the termination without justifiable cause and in violation of due procedure. The Court awarded five months' salary in compensation (Kshs. 40,000) and 27 days' leave pay (Kshs. 7,200), with interest at court rates, but rejected the notice pay claim as already paid and dismissed the public holidays claim as unproved. Costs were awarded to the Claimant.

Key legal issues

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01

Whether the termination of the Claimant's employment was lawful and fair

Holding

The allegation of desertion was not proved; the termination was without justifiable cause and in violation of due procedure

Reasoning

The Respondent alleged absenteeism/desertion and claimed a show cause letter was delivered through a co-worker, Patrick Oluoch. The Claimant denied receiving it and Oluoch was not called as a witness. The Respondent's own General Manager confirmed the Claimant had been injured at work. The Court found the Respondent made no effort to reach out to the Claimant before terminating him for desertion, so the termination failed both substantively and procedurally.

p. 2
02

Remedies payable for the unfair termination

Holding

Five months' salary in compensation and 27 days' leave pay awarded; notice pay refused as already paid; public holidays claim dismissed

Reasoning

The Court considered the Claimant's length of service (about two years) and the Respondent's conduct in handling the case in fixing compensation at five months' gross salary. Leave records showed only one signed requisition for 4 days, and 14.5 days' leave pay had been paid at termination; after discounting both, 27 days remained payable.

p. 2

Legal principles established

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  • Where an employer alleges desertion, it must reach out to the employee and put him on notice that termination on account of desertion is being considered

Court orders

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  1. 1.Judgment entered in favour of the Claimant for Kshs. 40,000 being 5 months' salary in compensation
  2. 2.Kshs. 7,200 being 27 days' leave pay
  3. 3.Total award of Kshs. 47,200 with interest at court rates from the date of judgment until payment in full
  4. 4.Claimant awarded costs of the case

Authorities

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Cases cited (1)

  • James Namayi v Menengai Oil Refineries Ltd
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over claims of unfair termination and terminal dues (memorandum of claim filed 16th October 2015)

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, "Pius Owuor Ogao v Auto Hauliers (K) Limited [2019] KEELRC 1793 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1793/eng@2019-04-09

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