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ELRCPartially AllowedCause No 1381 of 2011· [2020] KEELRC 633 (KLR)

Emily Simani v Ashtosh Mishra & 2 others [2020] KEELRC 633 (KLR)

Employment and Labour Relations Court
23 July 2020
OMONESMUS N. MAKAU
2,045 words in judgment
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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 sued contending she was employed by the 1st Respondent from 10 September 2007 as a house servant at a monthly salary of KShs. 4,500 and was summarily dismissed on 15 November 2010 without notice, valid reason or a hearing. She sought a declaration of unfair termination and terminal benefits of KShs. 220,012.45, including notice pay, unpaid salary, leave, public holidays pay, service gratuity, underpayments, 12 months' compensation and a certificate of service. The 1st Respondent denied being the employer, asserting the claimant worked casually for the 2nd Respondent until December 2009 and then for the 3rd Respondent, and that she was paid KShs. 37,500 in full and final settlement. The 2nd and 3rd Respondents filed no defence. Only the claimant testified; the respondents adduced no evidence. The court found, on a balance of probability, that the 1st Respondent was her employer and that the dismissal was substantively and procedurally unfair under sections 45 and 41 of the Employment Act, the employer having failed to discharge its burden of proof. The court declared the termination unfair and awarded notice pay of KShs. 4,500, three months' compensation of KShs. 13,500 in lieu of the claimed 12 months (given her service of less than three years), leave pay of KShs. 3,634.60 and unpaid salary of KShs. 15,750, totalling KShs. 37,384.60, subject to statutory deductions, with interest at court rates. Claims for service gratuity, public holidays pay and underpayments were dismissed for want of specific pleading and proof. The claimant also received a certificate of service and costs.

Key legal issues

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01

Identity of the claimant's employer

Holding

On a balance of probability the claimant's employer from September 2007 to November 2010 was the 1st Respondent, the respondents having adduced no evidence to rebut her uncontroverted testimony.

Reasoning

The 1st Respondent denied employment and asserted the claimant worked for the 2nd and 3rd Respondents as a casual worker. The claimant testified she worked as a house servant for the 1st Respondent. The respondents did not testify or tender any evidence at trial, leaving the claimant's evidence unrebuted.

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02

Whether the termination was unfair

Holding

The summary dismissal was substantively and procedurally unfair under section 45 of the Employment Act, the employer having failed to prove a valid reason or a fair hearing under section 41.

Reasoning

Section 45(1) prohibits unfair termination; subsection (2) requires the employer to prove a valid and fair reason and fair procedure, which includes a hearing under section 41. The 1st Respondent adduced no evidence that the claimant absconded or that she was heard before dismissal, so the uncontroverted evidence of unfair dismissal stood.

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03

Entitlement to reliefs

Holding

Claimant awarded one month's notice pay, three months' compensation, one year's leave pay and unpaid salary (August–November 2010, the latter for 15 days), plus a certificate of service; gratuity, public holidays pay and underpayment claims dismissed for want of proof.

Reasoning

Notice pay flowed from section 35(1)(c) providing 28 days' notice; compensation of three months was justified by her short service of under three years and prospects of alternative employment. Leave succeeded because the employer produced no leave records under section 74(1)(f). Gratuity, holidays and underpayments failed as special claims not specifically pleaded and proven.

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Legal principles established

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  • An employer bears the burden of proving a valid and fair reason and fair procedure for termination under sections 45 and 41 of the Employment Act; failure to adduce evidence results in a finding of unfair termination.
  • A special claim (such as underpayments or public holiday pay) must be specifically pleaded and proven.
  • An employer who fails to produce leave records as required by section 74(1)(f) of the Employment Act cannot controvert a claim for accrued leave.

Court orders

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  1. 1.Inter judgment for the claimant against the 1st Respondent in the sum of Kshs. 37,384.60 comprising notice Kshs. 4,500, compensation Kshs. 13,500, leave Kshs. 3,634.60 and unpaid salary Kshs. 15,750
  2. 2.Claimant to be issued with a Certificate of Service
  3. 3.Award subject to statutory deductions
  4. 4.Costs of the suit plus interest at court rate from the date of judgment

Authorities

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Legislation

  • Employment Act 2007section 41
  • Employment Act 2007section 45(1) and (2)
  • Employment Act 2007section 49
  • Employment Act 2007section 35(1)(c) and 35(6)
  • Employment Act 2007section 74(1)(f)
  • Employment Act 2007section 51(2)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 and the 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, "Emily Simani v Ashtosh Mishra & 2 others [2020] KEELRC 633 (KLR)", Case Analysis (2020). Cause No 1381 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/633/eng@2020-07-23

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