Dalmas Ouma Gor v Yalfa Cargo Handlers Limited [2020] KEELRC 1328 (KLR)
The bottom line
#A Kenyan court ruled that forcing an employee on compulsory leave then replacing him counts as unfair termination, awarding seven months' salary.
What this practically means
#Executive summary
#Key legal issues
#Existence of employment relationship
The Claimant was the Respondent's employee, confirmed by the Respondent's own witness despite the general denial in the Statement of Response
Although the Respondent pleaded the Claimant was not its employee, its HR Manager Macklean Chilumo Mkenye confirmed the employment relationship in evidence. The Court therefore accepted the Claimant's account of the date of employment and terms and conditions as stated in his pleadings and witness statement.
Fairness of termination
Termination was unfair - no valid reason and manifestly flawed procedure
The Respondent placed the Claimant on successive compulsory leave of 41 days without investigating any employment offence, held no recorded disciplinary hearing, issued no letter of termination, and told him his position had been taken over by another employee. Securing another job immediately thereafter was immaterial. Compensation of 7 months' salary was awarded considering his 9 years of unblemished service and mitigation.
Leave and service pay claims
Leave claim rejected; service pay rejected due to N.S.S.F. subscription
The Claimant signed leave forms and took 41 days leave before termination; his claim for 6 years' leave out of 9 years worked was not supported by evidence. Service pay is excluded for employees subscribed to N.S.S.F. under Section 35(5) of the Employment Act.
Legal principles established
#- Termination without valid reason and without procedure (no investigation, no disciplinary hearing, no termination letter) is unfair
- Placing an employee on successive compulsory leave and advising them their position has been taken over effectively terminates the contract
- An employee subscribed to N.S.S.F. does not merit service pay under Section 35(5) of the Employment Act
Court orders
#- 1.Declaration that termination was unfair
- 2.Respondent to pay equivalent of 7 months' salary in compensation for unfair termination at Kshs. 105,000
- 3.Respondent to pay notice pay at Kshs. 15,000 (total Kshs. 120,000)
- 4.No order on the costs and interest
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dalmas Ouma Gor v Yalfa Cargo Handlers Limited [2020] KEELRC 1328 (KLR)", Case Analysis (2020). Cause No 173 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1328/eng@2020-03-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.