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ELRCPartially AllowedCause No 173 of 2018· [2020] KEELRC 1328 (KLR)

Dalmas Ouma Gor v Yalfa Cargo Handlers Limited [2020] KEELRC 1328 (KLR)

Employment and Labour Relations Court
26 March 2020
956 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant sued the Respondent claiming he was employed as a Tyre Supervisor from March 2009 at a monthly salary of Kshs. 15,000, and was dismissed without notice or justifiable cause after being placed on successive compulsory leave and told another employee had taken his position. He sought one month's notice pay, 12 months' compensation for unfair termination, accumulated annual leave, service pay, a declaration that termination was unfair, costs and interest. The Respondent filed a general denial, disputing that an employment relationship existed at all. In oral evidence, the Respondent's Human Resource Manager, Macklean Chilumo Mkenye, confirmed the Claimant was an employee, that he did not apply for leave, and that the contract was not terminated by any letter. The Court found the employment relationship established, the terms as pleaded by the Claimant, and that the contract was effectively terminated when, after twice being placed on compulsory leave of 41 days, the Claimant was advised his position had been taken over. The Respondent showed no valid reason for termination and its procedure was manifestly flawed - there was no investigation, no recorded disciplinary hearing and no termination letter. The Court awarded 7 months' salary (Kshs. 105,000) in compensation, considering his 9 years of unblemished service and his mitigation in securing alternative employment, plus notice pay of Kshs. 15,000. The leave claim was rejected as unsupported by evidence, and service pay was denied because the Claimant was subscribed to N.S.S.F. under Section 35(5) of the Employment Act. No order was made on costs and interest.

Key legal issues

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01

Existence of employment relationship

Holding

The Claimant was the Respondent's employee, confirmed by the Respondent's own witness despite the general denial in the Statement of Response

Reasoning

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.

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02

Fairness of termination

Holding

Termination was unfair - no valid reason and manifestly flawed procedure

Reasoning

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.

p. 2
03

Leave and service pay claims

Holding

Leave claim rejected; service pay rejected due to N.S.S.F. subscription

Reasoning

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.

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Legal principles established

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  • 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

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  1. 1.Declaration that termination was unfair
  2. 2.Respondent to pay equivalent of 7 months' salary in compensation for unfair termination at Kshs. 105,000
  3. 3.Respondent to pay notice pay at Kshs. 15,000 (total Kshs. 120,000)
  4. 4.No order on the costs and interest

Authorities

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Legislation

  • Employment ActSection 35(5)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims 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, "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.