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ELRCPartially AllowedNot stated in judgment· [2020] KEELRC 412 (KLR)

Elizabeth Wanza Kisululu v Changamwe Service Station [2020] KEELRC 412 (KLR)

Employment and Labour Relations Court
8 October 2020
JRJames Rika
2,049 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 court dismissed an employee's unfair termination claim after she admitted theft and abandoned work, but still ordered her employer to issue a Certificate of Service.

What this practically means

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Executive summary

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The Claimant sued the Respondent, a petroleum business, alleging she was employed as a Pump Attendant from December 1999 at Kshs. 14,000 monthly without a written contract, pay slip, house allowance or annual leave, and that her contract was terminated without notice or reason on 7th August 2016. She sought a declaration of unfair termination, notice pay, house allowance, travel allowance, annual leave, compensation of Kshs. 193,200, a Certificate of Service, costs and interest. The Respondent denied the claims, asserting she was employed in January 2003 under a written contract, was paid house allowance and leave, and that she was implicated in a fraudulent fuel transaction in which she retained Kshs. 6,000, amounting to gross misconduct under Section 44(4) of the Employment Act warranting summary dismissal. The Court found, on the documents, that employment commenced in January 2003 under a written contract, applying Section 10(7) to displace the Claimant's oral evidence. Vouchers showed house allowance and leave were paid, defeating those prayers; travel allowance failed for want of any contractual or legal basis. On termination, the Court found the Claimant confessed in an apology letter to theft of Kshs. 6,000 and absconded fearing arrest, later receiving her dues and signing a discharge. The Respondent could not be faulted for omitting a show-cause letter or disciplinary hearing, as the Claimant placed herself beyond those processes. She failed to discharge her Section 47(5) burden of proving unfair dismissal. The claim was dismissed except for the Certificate of Service, which the Respondent was ordered to release forthwith, with no order on costs.

Key legal issues

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01

Commencement date and terms of employment

Holding

The Claimant was first employed in January 2003 under a written contract, not December 1999, and was not a casual employee

Reasoning

The Respondent produced a contract executed in January 2003 and the Claimant's N.S.S.F statement. Although the statement showed a 1998 date, the Court held the 2003 contract disproved the Claimant's oral testimony of 1999 employment under Section 10(7) of the Employment Act. Casual employment was denied by both parties.

p. 3
02

House allowance and annual leave

Holding

Both prayers failed; vouchers showed payment

Reasoning

The Claimant signed salary vouchers indicating house allowance at Kshs. 2,126 monthly for 2015 and 2016 and pro rata leave payments. She claimed she signed blank vouchers, but the Court found her generalised testimony unsupported. She also did not plead house allowance for the period 2003 to August 2012.

p. 3
03

Whether termination was unfair

Holding

No termination by the Respondent; the Claimant abandoned employment after committing theft, which constituted gross misconduct warranting summary dismissal

Reasoning

The Claimant confessed in an apology letter to defrauding the Respondent of Kshs. 6,000 on a fuel order, then absented herself from work. She later returned, received terminal dues, and signed a discharge. The Court found she could not rely on absence of show-cause or disciplinary processes having placed herself beyond them, and failed to prove unfair dismissal under Section 47(5).

p. 3
04

Certificate of Service

Holding

Entitled; the only successful prayer

Reasoning

Although the Claim failed in all other respects, the Court found the Claimant merited a Certificate of Service, an entitlement irrespective of the circumstances of exit.

p. 3

Legal principles established

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  • An employer may disprove a claimant's oral evidence on the date and terms of employment by production of a written contract under Section 10(7) of the Employment Act
  • An employee who abandons employment to escape disciplinary processes cannot fault the employer for failure to issue a show-cause letter or hold a disciplinary hearing, and such abandonment following gross misconduct warrants summary dismissal
  • An employee alleging unfair termination bears the evidential burden under Section 47(5) of the Employment Act

Court orders

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  1. 1.The Respondent shall release to the Claimant her Certificate of Service forthwith
  2. 2.The rest of the Claim is declined with no order on the costs

Authorities

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Legislation

  • Employment Act 2007Section 44(4)
  • Employment Act 2007Section 10(7)
  • Employment Act 2007Section 47(5)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (Employment and Labour Relations Court Act)

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, "Elizabeth Wanza Kisululu v Changamwe Service Station [2020] KEELRC 412 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/412/eng@2020-10-08

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