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ELRCPartially AllowedMemorandum of Claim dated 8th February 2016, filed 29th March 2016· [2019] KEELRC 2150 (KLR)

Ronald Nyambu Daudi v Tornado Carriers Limited [2019] [2019] KEELRC 2150 (KLR)

Employment and Labour Relations Court
28 February 2019
LNLINNET NDOLO
822 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan employer who cannot give one consistent, proven reason for firing a worker, or prove desertion by showing outreach efforts, must pay compensation.

What this practically means

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Executive summary

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The Claimant, a mechanic employed by the Respondent from 4th October 2011 until 28th October 2013 on a monthly salary of Kshs. 13,500, claimed that his termination was unlawful and unfair. He sought notice pay, leave pay for two years, unremitted NSSF dues, travel allowance, twelve months' salary in compensation, punitive damages, a certificate of service and costs. The Respondent admitted the employment but denied unfair termination, asserting that the Claimant deserted duty after instances of gross misconduct for which he had been warned, and that his NSSF dues were remitted. The Court framed two issues: whether the Claimant deserted duty or was unlawfully terminated, and his entitlement to remedies. The Court held that desertion, if proved, justifies summary dismissal, but an employer must show efforts to reach out to the employee and put them on notice. The Respondent's pleadings alleged desertion and gross misconduct, yet its witness testified that the Claimant was terminated for poor performance. Unable to identify a specific reason, and finding no ground established, the Court held the termination substantively and procedurally unfair, citing the failure to comply with Section 41 of the Employment Act, 2007. The Court awarded four months' salary in compensation, one month's notice pay, and leave pay for two years (the Respondent having no leave records), totalling Kshs. 86,400 with interest at court rates from the date of judgment, plus a certificate of service and costs. Claims for NSSF dues, travel allowance and punitive damages were dismissed.

Key legal issues

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01

Whether the Claimant deserted duty or was unlawfully terminated

Holding

The termination was substantively and procedurally unfair; desertion was not proved

Reasoning

The Respondent's Reply alleged desertion after gross misconduct, but its Workshop Supervisor testified that the Claimant was terminated for poor performance and careless, intoxicated work. Faced with these conflicting accounts, the Court could not identify a specific reason for termination. None of the grounds was established at the shop floor, and the employer failed to demonstrate the outreach efforts required where desertion is alleged. The termination was therefore unfair, both substantively and procedurally.

p. 2
02

Whether the Claimant is entitled to the remedies sought

Holding

Four months' salary in compensation, one month's salary in lieu of notice, leave pay for 2 years, certificate of service and costs awarded; NSSF dues, travel allowance and punitive damages refused

Reasoning

Compensation of four months' salary took into account the Claimant's length of service (October 2011 to October 2013) and the Respondent's failure to observe Section 41 of the Employment Act. Notice pay was due. Leave pay succeeded because the Respondent produced no leave records showing the leave had been exhausted. NSSF dues are payable to the statutory body, not the employee; travel allowance and punitive damages were not proved.

p. 2

Legal principles established

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  • An employer alleging desertion must show efforts made towards reaching out to the employee and putting them on notice that termination on this ground is under consideration
  • Where the employer advances conflicting grounds for termination and none is established, the termination is substantively and procedurally unfair

Court orders

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  1. 1.Judgment entered in favour of the Claimant in the sum of Kshs. 86,400 comprising Kshs. 54,000 (4 months' salary in compensation), Kshs. 13,500 (1 month's salary in lieu of notice) and Kshs. 18,900 (leave pay for 2 years)
  2. 2.The award to attract interest at court rates from the date of judgment until payment in full
  3. 3.The Claimant is entitled to a certificate of service
  4. 4.Costs of the case to the Claimant

Authorities

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Legislation

  • Employment ActSection 41

Cases cited (1)

  • Evans Ochieng Oluoch v Njimia Pharmaceuticals Limited
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; Section 41 cited)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ronald Nyambu Daudi v Tornado Carriers Limited [2019] [2019] KEELRC 2150 (KLR)", Case Analysis (2019). Memorandum of Claim dated 8th February 2016, filed 29th March 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2150/eng@2019-02-28

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