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ELRCPartially AllowedCause No 179 of 2014· [2019] KEELRC 2281 (KLR)

Joseph Ouko Lwambe v Royal Garment Industries EPZ Limited [2019] KEELRC 2281 (KLR)

Employment and Labour Relations Court of Kenya
29 January 2019
MOMaureen Onyango
2,627 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan employer who fires a worker without a hearing or records must pay compensation, notice pay and unpaid salary.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 8th February 2012 as a machine operator, sued for unfair termination and terminal dues, claiming a declaration of unlawful dismissal, terminal benefits and compensatory damages totalling Kshs.160,137, plus costs and interest. The respondent admitted the employment but contended that the claimant was not dismissed but absconded duty. The claimant testified that on 30th September 2013 he was injured in the chemical department, was given one month's sick off, and when he presented the medical documents to HR he was told he was not productive and asked to leave. The respondent's HR manager admitted the claimant was never issued warning letters and that the respondent had no documentation to support the alleged abscondment. The court framed three issues: whether the claimant was terminated or absconded; whether the termination was procedurally and substantively valid; and entitlement to reliefs. Applying sections 41, 43, 45 and 47(5) of the Employment Act, the court held the respondent had not proved abscondment and that the termination was unfair for want of a disciplinary process, notice or hearing. The court awarded one month's salary in lieu of notice, unpaid September 2013 salary (holding a payslip is not conclusive proof of payment), pay in lieu of untaken leave, and three months' salary as compensation instead of the twelve months claimed, totalling Kshs.71,172, plus a certificate of service, costs to the claimant and interest at court rates from the date of judgment.

Key legal issues

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01

Whether the claimant absconded duty or was terminated

Holding

The respondent did not prove that the claimant absconded duty; the court accepted the claimant's account that his employment was terminated

Reasoning

RW1 testified that the claimant absconded duty severally but conceded he was never warned and produced no attendance or disciplinary records to support the assertion of abscondment. Under sections 10(6) and 10(7) of the Employment Act, where an employer fails to submit prescribed records, the burden of controverting the employee's averments lies with the respondent. Absconding is a ground for summary dismissal under section 44(4), but it had to be proved.

p. 3
02

Whether the termination was procedurally and substantively fair

Holding

The termination was unfair because no disciplinary process or notice was shown to have been undertaken

Reasoning

Section 47(5) places the burden of proving unfair termination on the employee, while the employer must justify the grounds for termination. The employer produced no evidence of a disciplinary hearing or notice under section 41 of the Employment Act. Following Walter Ogal Anuro v Teachers Service Commission, fairness requires both a valid reason and a fair procedure, neither of which was demonstrated on the evidence.

p. 4
03

Whether the claimant was entitled to the reliefs sought

Holding

The claimant was entitled to notice pay, unpaid September 2013 salary, leave pay, three months' compensation and a certificate of service, but not twelve months' compensation

Reasoning

Notice pay was due under section 36. The September 2013 salary claim was not genuinely rebutted - the payslip produced by the respondent was not conclusive proof of payment, and a payslip for October 2013, a month the claimant did not work, cast doubt on its reliability. Leave pay under section 28 was unrebutted. Compensation was reduced to three months given the short service period of one year and seven months.

p. 4

Legal principles established

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  • For a termination of employment to pass the fairness test there must be both substantive justification and procedural fairness
  • Where an employer fails to submit prescribed records such as disciplinary records, the burden of controverting the employee's averments lies with the employer/respondent
  • A payslip is not conclusive evidence that salary was actually paid to the employee

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs.11,862
  2. 2.Earned unpaid salary for September 2013 of Kshs.11,862
  3. 3.Pay in lieu of leave of Kshs.11,862
  4. 4.Compensation for unfair termination of Kshs.35,586 (three months' salary)
  5. 5.Total award of Kshs.71,172 plus a Certificate of Service
  6. 6.The respondent to pay the claimant's costs of the case
  7. 7.Interest to accrue at court rates from the date of judgment

Authorities

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Legislation

  • Employment Act, 2007Section 45
  • Employment Act, 2007Sections 10(3), 10(6), 10(7)
  • Employment Act, 2007Sections 28, 35, 35(1), 36
  • Employment Act, 2007Sections 41, 41(2)
  • Employment Act, 2007Sections 43, 44(4), 44(4)(1)
  • Employment Act, 2007Sections 47(5), 49, 51
  • Employment Act, 2007Section 74

Cases cited (7)

  • Kenya Union of Domestic, Hotels, Educational Institutions & Hospitals Workers v Mombasa Sports Club
    Cause No. 440 of 2013
  • Banking, Insurance & Finance Union (Kenya) v Barclays Bank of Kenya Limited
    Cause 1660 of 2013
  • Joseph Njoroge Kiama v Summer LIMITED
    Cause No. 37 of 2012
  • Daniel Mueke v Bhogals Auto World
    Cause No. 65 of 2014
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Francis Mbugua Boro v Smartchip Dynamics Ltd
    (2017) eKLR
  • David Njoroge Muiru v Elsa Limited
    (2014) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over a claim of unfair termination under the Employment Act, 2007 (specific enabling provision not stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Joseph Ouko Lwambe v Royal Garment Industries EPZ Limited [2019] KEELRC 2281 (KLR)", Case Analysis (2019). Cause No 179 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2281/eng@2019-01-29

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