Stanslaus Onchari v Creative Consolidated Systems Ltd [2020] KEELRC 1091 (KLR)
The bottom line
#A Kenyan court ruled an employee's dismissal unfair because the employer gave contradictory notice with no reasons, awarding him over Kshs 63,000.
What this practically means
#Executive summary
#Key legal issues
#Procedural and substantive fairness of termination
The termination was both procedurally and substantively unfair because adequate notice was not given and no reasons for termination were provided
The termination letter purported to give one month's notice but required handover by 10 July 2016, less than the statutory 28 days, and no pay in lieu was tendered. Further, the notice gave no reasons for the termination as contemplated by sections 40, 41, 43 and 45 of the Employment Act. The Claimant's testimony was unchallenged as the Respondent did not participate.
Compensation for unfair termination and notice pay
Compensation equivalent to 3 months' gross wages awarded considering length of service of about 3 years, plus one month's salary in lieu of notice
The Claimant served the Respondent for about 3 years. In consideration of the length of service, the Court held that compensation equivalent to 3 months' gross wages (salary Kshs 9,800/-) would be fair. As adequate notice was not given and there was no evidence of pay in lieu of notice, one month's salary in lieu was also awarded.
Untaken leave
Relief declined for lack of evidence that leave was requested and declined or carried forward with permission
Section 28(4) of the Employment Act circumscribes how much annual leave may be carried forward. The Claimant did not disclose whether he requested leave and was declined or carried forward leave with the Respondent's permission, so the claim of Kshs 29,400/- failed.
Overtime
Relief declined for lack of evidential or legal foundation
The Employment Act leaves working hours to agreement between the parties, unlike the Regulations made under the Labour Institutions Act. The Claimant laid no evidential or legal foundation for the overtime claim, which was accordingly declined.
Service pay
Service pay of Kshs 14,700/- awarded under section 35(5) and (6) absent evidence of NSSF or pension contributions
Pursuant to sections 35(5) and (6) of the Employment Act, and in the absence of any evidence that the Claimant was a contributor to the National Social Security Fund or a pension scheme, the Court allowed service pay of Kshs 14,700/-.
Legal principles established
#- Under section 35(1)(c) of the Employment Act an employer must give at least 28 days written notice of termination or pay in lieu of notice
- Sections 40, 41, 43 and 45 of the Employment Act contemplate the giving of reasons before termination of employment
- An employee is entitled to earned wages up to the effective date of termination as of right
- Service pay is payable under section 35(5) and (6) absent evidence that the employee was a contributor to NSSF or a pension scheme
Court orders
#- 1.The Court finds and declares that the termination of the Claimant's employment was unfair
- 2.The Court finds and declares that the Respondent was in breach of contract
- 3.Award of compensation equivalent to 3 months gross wages of Kshs 29,400/-
- 4.Award of salary in lieu of notice of Kshs 9,800/-
- 5.Award of July 2016 salary of Kshs 9,800/-
- 6.Award of service pay of Kshs 14,700/-
- 7.Total award of Kshs 63,700/-
- 8.The Claimant is denied costs for failure to file submissions
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 over disputes of wrongful, unfair and unlawful termination and non-payment of employment dues
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.
- Felix Mbolonzi Kioko v Director of Public Prosecutions [2020] KEELRC 454 (KLR)[2020] KEELRC 454 (KLR)24 Sept 2020applied
Cite this brief
#Cite this brief
Caselaw, "Stanslaus Onchari v Creative Consolidated Systems Ltd [2020] KEELRC 1091 (KLR)", Case Analysis (2020). Nairobi Cause No. 2388 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1091/eng@2020-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.