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ELRCPartially AllowedNot stated in judgment· [2020] KEELRC 212 (KLR)

Joshua Mwika Indusa v Connect Experiential Limited & another [2020] KEELRC 212 (KLR)

Employment and Labour Relations Court
23 November 2020
3,138 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, employed by the 1st Respondent from 2.6.2006 as an Office Cleaner/Messenger, claimed that his summary dismissal on 1.2.2016 was unfair and unlawful, seeking a declaration, terminal benefits and compensation of Kshs. 853,997.99, costs and interest. The dispute was partially settled through mediation, leaving for determination the declaration, salary in lieu of notice, compensation, accrued leave and overtime pay. The 1st Respondent contended the claimant was dismissed for gross misconduct (attending work while intoxicated) after he declined to attend a disciplinary hearing, while the 2nd Respondent, a director, denied liability. The court framed two issues: whether the dismissal was unfair and unlawful, and whether the reliefs were payable. It held that the employer bore the legal burden of proving a valid reason and fair procedure. The termination letter cited no reason beyond deeming non-attendance at the hearing an admission of guilt. The respondent failed to prove service of the show cause letter dated 18.1.2016, so the alleged misconduct was unproven under section 43(2) and a fair procedure under sections 41 and 45 was not established. The court declared the termination unfair and unlawful and awarded one month's notice (Kshs. 18,000), 8 months' compensation (Kshs. 144,000) and accrued leave for 99 days (Kshs. 59,400), totalling Kshs. 221,400 against the 1st Respondent, subject to statutory deductions, with costs and interest. The overtime claim was dismissed for lacking material particulars and evidence. Judgment delivered online pursuant to Covid-19 directions with parties' consent, waiving Rule 28(3) of the ELRC Procedure Rules.

Key legal issues

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01

Whether the summary dismissal was for a valid reason

Holding

The dismissal was not justified by a valid reason; the respondent failed to prove the alleged misconduct existed at the time of dismissal as required under section 43(2) of the Employment Act

Reasoning

The termination letter cited no reason other than deeming the claimant's failure to attend the hearing an admission of guilt. The respondent failed to prove service of the show cause letter dated 18.1.2016, so the alleged admission had no proper basis and the alleged misconduct was unproven.

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02

Whether a fair procedure under section 41 of the Employment Act was followed

Holding

The employer failed to prove that the claimant was invited to a disciplinary hearing and declined, hence failed to prove a fair procedure

Reasoning

Since service of the show cause letter summoning the claimant to the disciplinary hearing was not proved, the respondent could not establish that the claimant was invited and declined to attend. Fair procedure under sections 41 and 45 was therefore not proved.

p. 4
03

Entitlement to salary in lieu of notice, compensation, and accrued leave

Holding

The claimant was entitled to one month's notice pay (Kshs. 18,000), 8 months' compensation (Kshs. 144,000), and accrued leave for 99 days (Kshs. 59,400); overtime claim dismissed

Reasoning

Flowing from the declaration of unfair termination, section 49(1) entitles the claimant to notice pay and compensation. The court considered his over 9 years of service and the unproven misconduct in awarding 8 months. The leave claim of 99 days was unrebutted by employer leave records.

p. 4

Legal principles established

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  • The employer bears the legal burden of proving the validity of the reason for termination and the fairness of the procedure followed
  • An employer must prove service of a show cause letter before treating non-attendance at a disciplinary hearing as an admission of guilt; documentary proof of service is expected

Court orders

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  1. 1.Declaration that the termination of the claimant's contract of employment was unfair and unlawful
  2. 2.Award of one month's salary in lieu of notice of Kshs. 18,000
  3. 3.Award of 8 months' salary compensation for unfair termination of Kshs. 144,000
  4. 4.Award of accrued leave pay of Kshs. 59,400
  5. 5.Total judgment of Kshs. 221,400 entered against the 1st Respondent only
  6. 6.Award to be in addition to the amount paid after termination plus the Mediation award
  7. 7.Award subject to statutory deductions
  8. 8.Costs plus interest at court rates from the date of judgment
  9. 9.Claim for overtime pay dismissed

Authorities

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Legislation

  • Employment ActSection 45(1) and (2)
  • Employment ActSection 41(1) and (2)
  • Employment ActSection 43(2)
  • Employment ActSection 49(1)
  • ELRC Procedure RulesRule 28(3)

Cases cited (5)

  • Bamburi Cement Limited v William Kilonzi
    [2016] eKLR
  • Alphonce Machanga Mwachanya v Operation 680 limited
    [2013] eKLR
  • Victor Mabachi & another v Nurturn Bates Ltd
    [2013] eKLR
  • Kenya Commercial Food and Allied Workers Union v Meru North Farmers SACCO Limited
    [2014] eKLR
  • Jackson Butiya v Eastern Produce
    Cause 335 of 2011
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (sections 41, 43, 45, 49 of the Employment Act applied); ELRC Procedure Rules Rule 28(3) referenced

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, "Joshua Mwika Indusa v Connect Experiential Limited & another [2020] KEELRC 212 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/212/eng@2020-11-23

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