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ELRCPartially AllowedEmployment and Labour Relations Cause (Memorandum of Claim dated 9th October 2014)· [2020] KEELRC 793 (KLR)

William Gituma Gateere v RAA Limited [2020] KEELRC 793 (KLR)

Employment and Labour Relations Court
26 June 2020
MOMaureen Onyango
3,138 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 ruled that firing a worker for desertion without proving he actually deserted, or giving him a hearing, was unfair and ordered the employer to pay.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a driver from November 2012, was involved in a road accident at work in February 2014 and was on sick off until September 2014. On reporting back, he was asked to explain a broken fuel tank seal. The claimant contended he was chased away after being accused of siphoning fuel; the respondent contended he walked away and deserted duty. The court identified the central question as whether the claimant was dismissed or deserted duty. Applying Section 10(7) and Section 74(1) of the Employment Act, the court held the respondent's only record, a letter to the Ministry of Labour, was not a record of evidence of misconduct, and that the claimant's testimony carried higher probative value since RW1 was not present when the alleged request for explanation occurred. Relying on authorities including Evans Ochieng Oluoch v Njimia Pharmaceuticals Limited and Stanley Omwoyo Onchweri, the court held that an employer alleging desertion must prove it and demonstrate efforts to reach the employee, and must accord a hearing under Section 41. The respondent failed on both counts, and the termination was found unfair substantively and procedurally. On remedies, the court awarded one month's notice pay of Kshs.16,150, eight days' September salary of Kshs.4,970, and three months' compensation of Kshs.48,450, totalling Kshs.69,570, declining the twelve months' compensation prayed for. The respondent was ordered to pay the claimant's costs, with interest from the date of judgment.

Key legal issues

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01

Whether the claimant was dismissed or deserted duty

Holding

The court found the claimant was not proved to have deserted duty; the respondent failed to produce records of the alleged misconduct or requests for explanation and failed to accord the claimant a hearing

Reasoning

The claimant's testimony had higher probative value than that of RW1, who was not present when the supervisor allegedly asked for an explanation. The only record produced was a letter to the Ministry of Labour, which is not a record of evidence of misconduct under Section 74(1). The respondent should have written to the claimant and invited him to a disciplinary hearing before any dismissal.

p. 5
02

Whether the termination was substantively and procedurally fair

Holding

Termination was unfair both substantively, for want of proof of reason, and procedurally, for failure of fair procedure under Section 41

Reasoning

The respondent produced no evidence that it actually asked the claimant to explain the broken fuel tank seal; the explanation should have been sought and answered in writing for record purposes. Desertion, like all misconduct, must be proved and requires demonstration of efforts to reach the employee before termination is considered.

p. 5
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What remedies the claimant was entitled to

Holding

One month's notice pay of Kshs.16,150, salary for 8 days worked in September 2014 of Kshs.4,970, and compensation of three months' salary of Kshs.48,450, totalling Kshs.69,570

Reasoning

The court awarded notice pay based on the contract and payslips produced by the respondent, restricted September salary to days actually worked, and assessed compensation at three months rather than the twelve months prayed for, taking into account all the circumstances of the case.

p. 5

Legal principles established

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  • An employer alleging desertion must prove it and must demonstrate efforts made to reach out to the deserting employee
  • Where an employer fails to produce written contract or prescribed particulars, the burden of proving or disproving the alleged term falls on the employer
  • An employer cannot be a passive observer where an employee commits misconduct; it must take action and bring the matter to a close

Court orders

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  1. 1.Award of one month's salary in lieu of notice of Kshs.16,150
  2. 2.Award of salary for 8 days worked in September 2014 in the sum of Kshs.4,970
  3. 3.Award of compensation equivalent to three months' salary in the sum of Kshs.48,450
  4. 4.Total award of Kshs.69,570 payable by the respondent to the claimant
  5. 5.Respondent to pay the claimant's costs of the suit
  6. 6.Interest to accrue from date of judgment

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 44(4)(a)
  • Employment ActSection 44(4)(e)
  • Employment ActSection 43
  • Employment ActSection 74(1)
  • Employment ActSection 10(7)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21 of the Laws of Kenya)Section 1B

Cases cited (8)

  • Seabolo v Belgravia Hotel
    (1997) 6 BLLR 829 (CCMA)
  • Thomas Sila Nzivo v Bamburi Cement Limited
    (2014) eKLR
  • Standard Group Limited v Jenny Leusby
    (2018) eKLR
  • Evans Ochieng Oluoch v Njimia Pharmaceuticals Limited
    [2016] eKLR
  • Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School
    [2015] eKLR
  • Ronald Nyambu Daudi v Tornado Carriers Limited
    [2019] eKLR
  • Chiguba Zuma Chiguba v Njuca Consolidated Company Limited
    [2018] eKLR
  • James Ashiembi Namayi v Menengai Oil Refineries Ltd
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (no specific constitutional article pleaded as basis of the claim)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (12)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "William Gituma Gateere v RAA Limited [2020] KEELRC 793 (KLR)", Case Analysis (2020). Employment and Labour Relations Cause (Memorandum of Claim dated 9th October 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/793/eng@2020-06-26

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