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ELRCDismissedCause No 523 of 2015· [2020] KEELRC 1245 (KLR)

Geofrey Nyabut Onguko v Adix Plastic Limited [2020] KEELRC 1245 (KLR)

Employment and Labour Court of Kenya
13 March 2020
ANAbuodha Jorum NelsonBOByram Ongaya
892 words in judgment
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The bottom line

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A Kenyan employee lost his unfair termination case because he couldn't prove the dismissal was unfair - evidence and documentation matter enormously.

What this practically means

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Executive summary

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The claimant, a general worker employed by the respondent from January 2013 until 28th February 2015, alleged he was unfairly terminated after refusing to sign a warning letter accusing him of leaving work early on the previous day, asserting he left at 6.30 pm as everyone else did. He also claimed he was not paid service pay or notice money. The respondent contended the claimant absconded duty without just cause, was insubordinate, was issued a notice to show cause which he failed to answer, and was never dismissed. In evidence, the claimant conceded he had received prior warning letters, apologized for absences, was absent on the material day, and had sought permission to be away from a fellow employee, Mr Mwakio, whom the respondent's Human Resources Manager said was not his supervisor. The claimant admitted he did not respond to the show cause letter. The court, invoking Section 47(5) of the Employment Act, held that the burden of proving unfair termination rests on the employee and that the claimant had failed to discharge that burden, particularly given his unrebutted warnings and apologies on the record. The claim was found without merit and dismissed with costs. The judgment was dated and delivered on 13th March 2020, authored by Abuodha Jorum Nelson J with Byram Ongaya J on the bench.

Key legal issues

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01

Whether the claimant proved unfair termination

Holding

The claimant failed to discharge his burden of proving unfair termination; the claim was dismissed.

Reasoning

The claimant alleged he was terminated for refusing to sign a warning letter for leaving work early, but conceded he was absent from work and merely sought permission from a fellow employee, Mr Mwakio, who the respondent's witness said was not his supervisor and could not grant permission. He received prior warning letters, apologized for absences, and did not respond to the show cause letter. Given these concessions and the absence of a rejoinder to the respondent's documents, the court found he had not proved unfair termination under Section 47(5) of the Employment Act.

p. 2

Legal principles established

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  • In a claim for unfair termination, the burden of proving that unfair termination took place rests on the employee, while the burden of justifying the reasons for termination rests on the employer.

Court orders

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  1. 1.The claim is dismissed with costs

Authorities

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Legislation

  • Employment ActSection 47(5)
Jurisdiction invoked
Employment and Labour Court jurisdiction over a claim for unfair termination under the Employment Act

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, "Geofrey Nyabut Onguko v Adix Plastic Limited [2020] KEELRC 1245 (KLR)", Case Analysis (2020). Cause No 523 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1245/eng@2020-03-13

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