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ELRCDismissedCause No. 5 of 2016

Jackson Otinya v For You Clothing Limited [2020] KEELRC 967 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
4 June 2020
2,310 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed a worker's unfair termination claim because walking off the job and never returning counts as abandonment, not unfair dismissal.

What this practically means

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Executive summary

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The claimant, employed as a loader/general worker, sued the respondent claiming notice pay, annual leave pay, underpayments, overtime and public holiday pay, alleging unfair termination on 25th May 2015 after he was directed to undress during a search following an incident in which he damaged wires to newly installed CCTV cameras. The respondent denied unfair termination, contending the claimant was formally employed by letter of appointment dated 28th April 2013, refused a routine pat-down search, walked off, deserted duty, and declined an invitation to resume work. It maintained wages complied with applicable Wage Orders, overtime was paid, leave was taken, and the shop closed on public holidays. Applying section 47(5) of the Employment Act, the court held the employee bears the burden of proving unfair termination and found the claimant had not discharged that duty. Relying on Kenfreight v Nguti, Munyolo v Unilever and Thomas Sila Nzivo v Bamburi Cement, the court found no unfair termination: the claimant abandoned his employment and, having failed to return upon invitation, could not claim notice pay. Claims predating the 28th April 2013 appointment letter were barred under section 90 of the Employment Act, with no proof of continuing injury. The work records, unchallenged, showed no underpayment, that overtime was compensated, and that annual leave was taken; the claimant admitted absence on public holidays. The suit was dismissed in its entirety with costs to the respondent, judgment delivered electronically on 4th June 2020 pursuant to COVID-19 court operations directives.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the claimant's employment was unfairly terminated on 25th May 2015 or whether he abandoned/deserted his employment
  2. 2.Whether the claimant is entitled to notice pay and compensation for unfair termination
  3. 3.Whether the claimant is entitled to underpayments from 2009 to 2015
  4. 4.Whether the claimant is entitled to overtime and off days pay
  5. 5.Whether the claimant is entitled to public holidays pay
  6. 6.Whether the claimant is entitled to annual leave pay

Key legal issues

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01

Whether the termination of employment was unfair

Holding

There was no unfair termination; the claimant abandoned his employment after refusing a routine search and failing to return despite invitation

Reasoning

Under section 47(5) of the Employment Act, the employee bears the burden of proving unfair termination. The court found that after the lunchtime incident on 25th May 2015, the claimant never returned to work, and when the respondent invited him to resume duty through its reply of 15th June 2015, he did not do so and gave no reasons in evidence for declining. He therefore frustrated his own employment rather than being unfairly terminated.

p. 3
02

Whether claims predating the letter of appointment of 28th April 2013 are recoverable

Holding

Claims prior to formal employment commencement are barred by section 90 of the Employment Act with no proof of continuing injury

Reasoning

The letter of appointment dated 28th April 2013 marked the commencement of formal employment. Any claims predating that date cannot be urged given the limitation provision in section 90 of the Employment Act, 2007, and the claimant proved no continuing injury that would extend the limitation period.

p. 3
03

Whether there were underpayments, overtime and public holiday pay

Holding

No underpayment; wages matched applicable Wage Orders, overtime was compensated, and the claimant admitted absence on public holidays

Reasoning

The work records, unchallenged by the claimant, showed log-in and exit times covering 8 work hours per day with a half day on Saturday, and payment statements included an overtime pay/allowance. Earnings of Ksh.9,024 plus house allowance of Ksh.1,354 were commensurate with the applicable Wage Orders for a general worker. The claimant admitted in evidence he was not at work during public holidays.

p. 3

Legal principles established

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  • The employee bears the burden of proving unfair termination under section 47(5) of the Employment Act
  • An employer need only have reasonable and sufficient grounds to suspect misconduct for summary dismissal under section 44(4)(g), not conclusive proof
  • An employee who abandons employment and fails to return upon invitation cannot claim notice pay

Court orders

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  1. 1.The claims made are dismissed
  2. 2.Costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim for unfair termination and terminal dues)

Relief refused

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Notice pay of Ksh.10,496.90

Claimant abandoned his employment and failed to return upon invitation; no unfair termination established

p. 3

Underpayments from 2009 to 2015

Wages from 1st May 2013 were commensurate with applicable Wage Orders; claims prior to the letter of appointment dated 28th April 2013 are time-barred

p. 3

Overtime and public holidays pay

Work records showed 8-hour days with overtime pay/allowance in payment statements; claimant admitted he was not at work during public holidays

p. 3

Annual leave pay

Records showed the claimant took his annual leave, last leave being from 5th April 2015

p. 3

Costs

Costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the claimant's case, the court finds no case of unfair termination of employment. By abandoning his employment and failing to return upon invitation by the respondent he frustrated his own employment, he failed to give notice and cannot claim compensation of notice pay thereof.
p. 3abandonment of employment
The Employer was not required to have conclusive proof of the Claimant's involvement; it was only expected to have reasonable and sufficient grounds.
p. 3standard for summary dismissal under section 44(4)(g)
Accordingly, the claims made are without merit and are hereby dismissed. Costs to the respondent.
p. 3final orders

Issues in the judgment

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minor

The judgment states the claimant was employed in January 2009 but later holds that formal employment commenced by letter of appointment dated 28th April 2013 and pre-2013 claims are barred

minor

Conflicting dates on the CCTV incident and last working day: 20th, 24th, 25th and 26th May 2015 are variously given

minor

Typographical errors throughout (e.g. 'spat-on' for 'pat-down', 'frustration' for 'frustrated')

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, "Jackson Otinya v For You Clothing Limited [2020] KEELRC 967 (KLR)", Case Analysis (2020). Cause No. 5 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/967/eng@2020-06-04

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