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ELRCPartially AllowedNot stated in judgment (filed 20th March 2017; amended 27th June 2017)· [2020] KEELRC 224 (KLR)

Collins Onyango Otieno v General Equipment (1978) Co. Ltd (Cause 119 of 2017) [2020] KEELRC 224 (KLR)

Employment and Labour Relations Court
15 October 2020
1,400 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a worker 12 months' salary because the employer could not prove a valid, fair reason for firing him.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 2003 as a General Worker earning Kshs. 17,000 per month, sued for a declaration that his summary dismissal on 21st December 2015 was unlawful and unfair, plus terminal benefits: service pay, three months' notice pay, maximum compensation, costs and interest. The respondent, through its Administration Manager (RW1), denied dismissal, asserting the claimant absconded on 23rd December 2015 after being confronted with an allegation of theft of company property; RW1 conceded the claimant was neither given a show cause letter nor subjected to the respondent's disciplinary committee, that no theft was reported to the police, and that no terminal benefits or certificate of service were given despite a Ministry of Labour recommendation. The court framed three issues: whether the claimant was dismissed or absconded; whether dismissal was for a valid reason; and entitlement to reliefs. Finding the testimony mutually destructive, the court preferred the claimant's account, noting the absence of any record of misconduct or tangible evidence of theft. It held the respondent failed to discharge the burden under section 43(1) and (2) of the Employment Act and violated sections 36, 41 and 45, while the claimant discharged his burden under section 47(5). The dismissal was declared unlawful and unfair. Applying cited authorities, the court awarded maximum compensation of 12 months' salary (Kshs. 204,000) and one month's notice (Kshs. 17,000), with interest, and ordered a certificate of service within 30 days. Claims for service pay and three months' notice were dismissed for want of proof. Costs followed the event.

Key legal issues

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01

Whether the claimant was summarily dismissed or absconded duty

Holding

The court believed the claimant's testimony that he was summarily dismissed for undisclosed reasons, rejecting the respondent's defence of abscondment which was unsupported by evidence of any theft or police report.

Reasoning

The testimony of CW1 and RW1 was mutually destructive, but the claimant had worked continuously for 12 years with no record of misconduct. RW1 gave no tangible evidence of the alleged theft - not what was stolen, when, where, or why the matter was not reported to the police. The court therefore preferred the claimant's account of summary dismissal without notice or hearing.

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02

Whether the respondent had a valid reason and followed fair procedure

Holding

The respondent failed to prove a valid reason under section 43 and violated sections 36, 41 and 45 by not giving notice, a show cause letter, or a disciplinary hearing.

Reasoning

RW1 conceded the respondent had a disciplinary committee but the claimant was neither given a show cause letter nor called before it. No notice of dismissal was given. The onus under section 43(1) and (2) was not discharged, and the procedure breaches of sections 36, 41 and 45 rendered the dismissal substantively and procedurally unfair under section 45.

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Reliefs: compensation, notice pay, service pay

Holding

Maximum 12 months' compensation under section 49(1)(c) and (4) and one month's notice pay were awarded; service pay and three months' notice were refused for want of proof.

Reasoning

The court deemed this an appropriate case for maximum compensation given the claimant's long service, unblemished record, lack of contribution to the dismissal, non-payment of terminal benefits and the respondent's disregard of the Ministry of Labour recommendation. However, service pay required proof that the claimant was not on NSSF or another pension scheme, and three months' notice required an appointment letter, neither of which was proved.

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Legal principles established

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  • The employer bears the onus under section 43(1) and (2) of the Employment Act to prove a valid reason for summary dismissal, and must also comply with fair procedure under sections 36, 41 and 45.
  • An employee who shows the dismissal was wrongful and unfair discharges the onus under section 47(5) of the Employment Act and may merit maximum compensation where the dismissal lacks notice, due process and the employee has an unblemished record.

Court orders

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  1. 1.Payment of Kshs. 17,000 in lieu of notice.
  2. 2.Payment of Kshs. 204,000 being compensation for the unlawful dismissal.
  3. 3.The award is payable with interest at court rates from date of judgment till payment in full.
  4. 4.The respondent to provide to the claimant certificate of service within 30 days of the judgment.
  5. 5.Costs to follow the event.

Authorities

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Legislation

  • Employment Actsections 36, 41, 43(1) and (2), 45, 47(5), 49(1)(c) and (4)
  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure ActSection 18
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (3)

  • Walter Ogal Anuro vs Teachers Service Commission
    (2013) eKLR
  • Francis Mbugua Boru vs Smart Chop Dynamics Ltd
    (2017) eKLR
  • Pay Mumo Kitavi vs Acme containers Limited
    (2019) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 and Article 162(2) of the Constitution (not expressly quoted; suit decided under sections 36, 41, 43, 45, 47(5) and 49 of the Employment Act 2007)

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, "Collins Onyango Otieno v General Equipment (1978) Co. Ltd (Cause 119 of 2017) [2020] KEELRC 224 (KLR)", Case Analysis (2020). Not stated in judgment (filed 20th March 2017; amended 27th June 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/224/eng@2020-10-15

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