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ELRCDismissedCause No 364 of 2013· [2020] KEELRC 1114 (KLR)

Peter Oenga v Rwaken Investments Limited [2020] KEELRC 1114 (KLR)

Employment and Labour Relations Court
14 May 2020
ANAbuodha Jorum Nelson
1,991 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan driver lost his unfair termination and overtime claims because he couldn't prove either that he was dismissed or that he worked overtime.

What this practically means

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Executive summary

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The claimant, a driver employed by the respondent from January 2009 to December 2011 and deployed to ferry Daystar University staff from Athi River, claimed he was unfairly terminated when, while on his normal off, the respondent's director told him a replacement driver had been engaged and that he would have to apply afresh for a job with another company to which he was being transferred. He claimed unpaid overtime, denial of leave and lack of an appointment letter. The respondent admitted the employment but said the agreed gross salary was Kshs 17,498/=, that the transfer was to monitor high fuel consumption, and that the claimant instead absconded duty and was never dismissed. The court held that the burden of proving unfair termination rests on the employee. The claimant produced no dismissal letter and, though he alleged he was asked to apply afresh to another company, never disclosed the name of that company, which could have rebutted the respondent's transfer explanation. The court was therefore not satisfied that a termination occurred, let alone an unfair one, and dismissed that head of claim. On overtime, the claimant relied on a work ticket book of over 100 pages, but the journey authorization column was in nearly all cases unsigned and the claimant himself often failed to sign as driver, rendering the document unreliable; the overtime claim was disallowed, the court noting that overtime is compensable if proved regardless of the fairness of any termination. The entire claim was found without merit and dismissed with costs.

Key legal issues

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01

Whether the claimant was unfairly terminated

Holding

Claim dismissed - claimant failed to prove termination occurred

Reasoning

The claimant alleged he was dismissed when asked to apply afresh for a job in another company. However, he did not attach a dismissal letter, did not name the company he claimed he was asked to apply to, and the respondent maintained he absconded after refusing a transfer. The claimant failed to discharge the legal burden of proving termination.

p. 2
02

Whether the claimant proved his overtime claim

Holding

Claim disallowed - documentary evidence unreliable

Reasoning

The claimant's claim for overtime was based on a work ticket book of over 100 pages. Although departure and arrival times were mostly entered, the column authorizing the journey was in nearly all cases not signed, and the claimant himself often did not sign as driver. No allegation was made that the respondent refused to sign. The document was therefore unreliable.

p. 3

Legal principles established

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  • The burden of proving unfair termination rests on the employee
  • Overtime is compensable if proved, independent of a claim for unfair termination

Court orders

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  1. 1.The entire claim is dismissed with costs
Jurisdiction invoked
Article 162(2) of the Constitution (Employment and Labour Relations Court jurisdiction) - as a first-instance employment cause

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, "Peter Oenga v Rwaken Investments Limited [2020] KEELRC 1114 (KLR)", Case Analysis (2020). Cause No 364 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1114/eng@2020-05-14

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