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ELRCPartially AllowedNot stated in judgment· [2019] KEELRC 2498 (KLR)

Charles Orina Orenge v Two Four Seven Guards Limited [2019] KEELRC 2498 (KLR)

Employment and Labour Relations Court
28 January 2019
994 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan employer that sacks a worker by phone without notice or a hearing, and cannot prove the worker absconded, must pay compensation.

What this practically means

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Executive summary

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The Claimant, a security guard employed from April 2016 at Kshs. 7,200/- monthly basic pay, sued for unfair and unlawful dismissal, alleging he was dismissed by phone on 12th April 2017 by the Respondent's supervisor, Teresiah Wachuka Gatheru, without notice, without reasons and without a chance to show cause. He sought damages, loss of income of Kshs. 86,400/-, one month's salary in lieu of notice, unpaid leave, costs and interest. The Respondent denied the dismissal, contending the Claimant absconded from his workstation after an off-day request was refused, and produced a muster roll to that effect. The Respondent's witness admitted no show cause letter was issued after the Claimant left. The court found that the attendance register showing the signing off was not availed and the supervisor who covered the shift was not called to testify, so the Respondent failed to discharge its burden under Section 43 of the Employment Act to prove absconding. The muster roll absence was equally consistent with summary dismissal in compliance with the supervisor's instruction. The court declared the dismissal unfair and without notice, awarding payment in lieu of notice of Kshs. 7,200/-, compensation of three months' salary (Kshs. 21,600/-) rather than the twelve months sought, and costs of the suit. The claims for unpaid leave and interest were not granted in the final orders.

Key legal issues

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01

Whether the Claimant absconded from work or was dismissed

Holding

The Claimant was dismissed without notice; the Respondent failed to prove absconding

Reasoning

The Respondent alleged the Claimant deserted his post after being refused an off day, relying on a muster roll showing he signed off. However, the register showing the signing off was not produced and the supervisor who covered the shift was not called to testify. Under Section 43 of the Employment Act the burden was on the Respondent to prove the reason, and it was not discharged. Absence from the muster roll could equally indicate summary dismissal in compliance with the supervisor's instruction not to report to work.

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02

Procedural fairness under Sections 35, 41 and 43 of the Employment Act

Holding

The dismissal was unfair and without notice, entitling the Claimant to a declaration and relief

Reasoning

The Claimant testified he was told on phone not to report to work and to return his uniform, with no reason given and no show cause letter or notice issued. The Respondent's witness admitted she did not write a show cause letter after the Claimant left. Termination without prior notice under Section 35 and without the show cause and hearing envisaged under Section 41 rendered the dismissal unfair, warranting payment in lieu of notice and compensation under Section 49(1)(c).

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Legal principles established

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  • The employer bears a statutory burden under Section 43 of the Employment Act to prove the reason for termination, and failure to avail employment records and call key witnesses means that burden is not discharged
  • Where the attendance/muster roll is not produced and the supervisor who covered the shift is not called to testify, the employer's assertion that the employee deserted employment cannot stand

Court orders

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  1. 1.Payment in lieu of notice of Kshs. 7,200/-
  2. 2.Compensation for 3 months of Kshs. 21,600/-
  3. 3.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment ActSection 35
  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 49(1)(c)
  • Employment ActSections 73 and 74
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair and unlawful dismissal claims (Employment 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, "Charles Orina Orenge v Two Four Seven Guards Limited [2019] KEELRC 2498 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2498/eng@2019-01-28

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