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ELRCDismissedELRC Cause (Nairobi), filed 18th April 2017 - Statement of Claim· [2020] KEELRC 129 (KLR)

Shaban Kaingu Kalii v Pontoon Limited [2020] KEELRC 129 (KLR)

Employment and Labour Relations Court
15 December 2020
JRJames Rika
1,876 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan employee who walks off the job without proof of dismissal cannot win an unfair termination claim, and his salary was set by his own KRA returns.

What this practically means

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Executive summary

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The Claimant sued the Respondent, which operates the Pontoon Restaurant & Bar Lounge, claiming arrears of salary and compensation for unfair termination. He averred that he was employed as General Manager on 4th July 2015 at a monthly salary of Kshs. 63,500, that his salary was frequently underpaid, that in March and April 2016 he received nothing (Kshs. 127,000), that the Respondent purported to reduce his salary to Kshs. 30,000, and that he was summarily dismissed. The Respondent denied the claims, stating his salary was Kshs. 50,000 (later evidenced as Kshs. 30,000) and that it owed no arrears. The Respondent's Director, Nancy Shivoko, testified that the Claimant allowed guests Maina and Kinuthia to accumulate unpaid bills exceeding Kshs. 400,000 (particularised at Kshs. 312,000), was advised to recover the debt failing which it would be recovered from his salary, and then deserted employment without handover or resignation. The Court held that the Claimant deserted employment rather than being dismissed; he gave no date of dismissal and produced no termination letter because none issued. Under section 47(5) of the Employment Act 2007, the primary burden of proving unfair termination rests on the employee, which the Claimant failed to discharge, so the Respondent had no burden to justify the termination. The Court found his salary was Kshs. 30,000, as consistently shown in KRA returns he himself endorsed. It added that any arrears would be offset by the Kshs. 312,000 debt attributable to his managerial ineptitude. The claim was declined with costs to the Respondent.

Key legal issues

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01

Unfair termination

Holding

Claim not proved; the Claimant deserted employment

Reasoning

The Claimant gave no specific date of dismissal and produced no letter of termination. The Court concluded that the Directors' letter requiring him to recover the customer debt or have it recovered from his salary triggered his desertion. Section 47(5) of the Employment Act places the primary burden of proving unfair termination on the employee; that burden failed, so the employer had no burden to justify termination.

p. 2
02

Monthly salary

Holding

Kshs. 30,000 per month, as shown in KRA returns

Reasoning

KRA returns across the months worked consistently showed a salary of Kshs. 30,000, with PAYE remitted on that basis. The Claimant, as General Manager with access to documents, produced nothing showing a salary of Kshs. 63,500 or a promise of that figure. He had endorsed the returns himself.

p. 3
03

Arrears of salary

Holding

No arrears established and any claim set off by the unpaid customer debt

Reasoning

No document supported the claimed higher salary. Even had arrears been shown, the Claimant left the Respondent with a debt of Kshs. 312,000 from guests well known to him, which the Directors had indicated would be recovered from his salary.

p. 3

Legal principles established

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  • In a complaint of unfair termination, the employee bears the primary burden of proving that unfair termination occurred; only then does the employer bear the secondary burden of justifying the termination
  • An employee who deserts employment without any termination letter cannot establish unfair termination

Court orders

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  1. 1.The Claim is declined.
  2. 2.Costs to the Respondent.

Authorities

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Legislation

  • Employment Act 2007section 47(5)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act 2007); Employment Act section 47(5) on burden of proof

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, "Shaban Kaingu Kalii v Pontoon Limited [2020] KEELRC 129 (KLR)", Case Analysis (2020). ELRC Cause (Nairobi), filed 18th April 2017 - Statement of Claim. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/129/eng@2020-12-15

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