Charles Orina Orenge v Two Four Seven Guards Limited [2019] KEELRC 2498 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Claimant absconded from work or was dismissed
The Claimant was dismissed without notice; the Respondent failed to prove absconding
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.
Procedural fairness under Sections 35, 41 and 43 of the Employment Act
The dismissal was unfair and without notice, entitling the Claimant to a declaration and relief
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).
Legal principles established
#- 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
#- 1.Payment in lieu of notice of Kshs. 7,200/-
- 2.Compensation for 3 months of Kshs. 21,600/-
- 3.Costs of the suit to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair and unlawful dismissal claims (Employment Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.