Millicent Owade v Essentials Manufacturing Company Limited [2020] KEELRC 711 (KLR)
The bottom line
#A Kenyan employer who cannot produce employment records and give a hearing loses an unfair termination claim and pays damages.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant absconded or was summarily dismissed
The claimant did not wilfully abscond; she was summarily dismissed without prior notice.
The respondent alleged the claimant absconded, but produced no documentary employment records or copies of the warning letters RW1 claimed to have issued, contrary to the employer's record-keeping duty under Section 74(1)(l) of the Employment Act. The claimant tendered emails showing termination and follow-up for unpaid dues. The court therefore drew the inference that she was dismissed and that the respondent wanted it to appear as a resignation.
Whether the termination was wrongful and unfair
The termination was unfair under Sections 41, 43 and 45 of the Employment Act.
The burden of proving unfair termination rests on the employee under Section 47(5), and the claimant discharged it. She was never afforded a hearing nor given notice, contrary to Section 41. The court cited Donald Odeke v Fidelity Security Ltd that termination without a hearing is ipso facto unfair, and found the summary dismissal unfair.
Entitlement to reliefs
Claimant awarded September salary, 2 days' October salary, notice pay, 4 months' compensation and certificate of service; house allowance claim dismissed.
Under Section 49 of the Employment Act the claimant was entitled to compensation for wrongful dismissal; the court awarded 4 months' salary considering the manner of termination and Section 49(4) factors. Notice pay was granted under Section 49(1)(a), and the September salary which the respondent partially admitted. The house allowance claim failed for want of proof of entitlement.
Legal principles established
#- An employer bears the burden of keeping employment records including warning letters under Section 74(1) of the Employment Act, and failure to produce such records defeats an allegation of abscondment.
- Where an employee is not afforded a hearing before termination, the termination is unfair regardless of the alleged offence.
- Where an employer fails to produce a written contract, the burden of proving or disproving an alleged term of employment rests on the employer (Section 10(7), Employment Act).
Court orders
#- 1.Declaration that the respondent unfairly terminated the employment of the claimant
- 2.Payment of salary for September 2015 of Kshs.120,560
- 3.Payment of salary for 2 days worked in October of Kshs.9,274
- 4.Pay in lieu of notice of Kshs.120,560
- 5.4 months' salary as compensation of Kshs.482,240, total award Kshs.732,634
- 6.Respondent to issue a Certificate of Service
- 7.Costs of the suit to the claimant
- 8.Interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act; Employment and Labour Relations Court (Procedure) Rules, 2016 referred to
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Francis Njoroge Ngaruia v Olooltepes Picnic Site Limited [2020] KEELRC 151 (KLR)[2020] KEELRC 151 (KLR)4 Dec 2020applied
Cite this brief
#Cite this brief
Caselaw, "Millicent Owade v Essentials Manufacturing Company Limited [2020] KEELRC 711 (KLR)", Case Analysis (2020). Cause (Employment and Labour Relations Court, Nairobi) - Memorandum of Claim dated 17th February 2016; number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/711/eng@2020-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.