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ELRCPartially AllowedCause No 2091 of 2011· [2019] KEELRC 2591 (KLR)

Fredrick Wabwire Mulaa & 3 Others v Jesmiras Lubricants [2019] KEELRC 2591 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
22 November 2019
ANAbuodha Jorum Nelson
1,047 words in judgment
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The bottom line

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A Kenyan court ruled employers must prove and fairly justify dismissals—this employer's silence cost it notice pay, service pay, and six months' compensation.

What this practically means

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Executive summary

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Four claimants sued Jesmiras Lubricants alleging unfair summary dismissal. They were employed as general workers and on 2 February 2009 were asked to stay away from work pending investigations into a theft incident at the respondent's premises. When they reported back at the beginning of March 2009 they were continuously turned away and eventually told verbally they were no longer employees. They were never issued show cause notices or subjected to a disciplinary hearing and were not paid terminal dues. The respondent admitted the employment relationship but contended the claimants were stood down pending police investigations into a possibly employee-aided robbery, and that instead of waiting they issued a demand letter through their advocates on 22 April 2009, so they voluntarily left employment. The court held that the burden of justifying termination lies on the employer, and that a dismissal for absconding must be backed by evidence of attempts to contact the employee and a show cause letter. The respondent never responded to the demand letter to explain why the claimants had not resumed duties, so its claim of voluntary departure was rejected and it failed to discharge the statutory burden. The court awarded one month's salary in lieu of notice, unpaid salary for February 2009, service pay at 15 days' pay per complete year of service, and six months' salary as compensation for unfair termination. The claim for untaken leave was rejected for lack of evidence. Lacking payslips, the parties were directed to compute the decretal sum and return to court within 30 days for recording of final orders, with mention on 4 February 2020.

Key legal issues

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01

Whether the claimants voluntarily left employment or were unfairly terminated

Holding

The court found the claim of voluntary departure untrue since the respondent never responded to the claimants' demand letter to explain why they had not resumed duties

Reasoning

The claimants were asked to stay away pending investigations into a theft incident and reported back in March 2009 but were turned away. The respondent alleged voluntary departure and abscondment but produced no response to the advocates' demand letter of 22 April 2009 and no show-cause process, failing to discharge the employer's burden of justifying termination.

p. 2
02

Whether the respondent discharged the burden of justifying termination

Holding

The respondent failed to discharge the burden cast upon it by law to prove or justify the reasons for termination

Reasoning

The employer bore the legal burden of justifying the termination. It neither recalled the claimants, explained their continued exclusion, issued show cause notices, nor subjected them to a disciplinary hearing. Its assertion of voluntary departure was contradicted by its silence in response to the demand letter, so the termination was unfair.

p. 2

Legal principles established

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  • In a claim for unfair termination or wrongful dismissal, the burden of justifying the reasons for termination rests on the employer.
  • A dismissal for absconding duty must be supported by evidence of attempts to contact the employee and a show cause letter or message.

Court orders

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  1. 1.Award of one month's salary in lieu of notice
  2. 2.Award of unpaid salary for February 2009
  3. 3.Award of service pay at the rate of 15 days' pay for each complete year of service
  4. 4.Award of six months' salary as compensation for unfair termination
  5. 5.Parties to compute the decretal sum using the stated parameters and return to court within 30 days for recording of final orders
  6. 6.Mention on 4.2.2020 at Nairobi for recording of final orders
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over claims of unfair termination and terminal dues

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, "Fredrick Wabwire Mulaa & 3 Others v Jesmiras Lubricants [2019] KEELRC 2591 (KLR)", Case Analysis (2019). Cause No 2091 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2591/eng@2019-11-22

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