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ELRCPartially AllowedCause No 347 of 2012· [2020] KEELRC 1518 (KLR)

Jeckoniah Onyango v Cedar Phamacare Ltd & 2 others [2020] KEELRC 1518 (KLR)

Employment and Labour Relations Court of Kenya
24 February 2020
1,253 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 found a pharmacy worker was unfairly fired after 20+ years, but he only recovered Kshs 179,423 because his evidence was patchy.

What this practically means

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Executive summary

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Jeckoniah Onyango (Claimant) sued the Respondents, trading as Mellon Pharmaceuticals/Cedar Pharmacy and Cedar Pharmacare Ltd, claiming wrongful termination, terminal dues, general damages and statutory contributions. The Cause, heard partly by Nzioki wa Makau J and concluded by Radido Stephen J after transfer of the file, raised issues of the commencement date of employment, unfair termination, and various dues. The Court found the employment began in 1993, not 1990, since the 2nd Respondent was only licensed and registered the business that year and no payslips existed. On termination, the Court had two inconsistent accounts: the Claimant said he was ordered to leave over alleged theft of drugs; the 2nd Respondent said the Claimant stormed out and absconded. The Court preferred the Claimant's version as more probable, notably because he obtained legal advice and sent a demand letter within hours. Procedurally, the informal hearing constituted substantial compliance with section 41 given the lean business structure. However, substantively the Respondents failed to prove abscondment or to discharge the burden under sections 43 and 45, so the termination was unfair. The Court awarded one month's salary in lieu of notice (Kshs 15,000/-) and service pay (Kshs 164,423/-), totaling Kshs 179,423/-. It declined compensation, unpaid January salary (found paid by M-Pesa), accumulated leave (insufficient evidence and section 28(4) limits), house allowance (wage exceeded the general labourer minimum) and defamation damages. Costs were denied to the Claimant for failing to file submissions within the agreed timelines.

Key legal issues

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01

Commencement date of employment

Holding

Employment relationship started in 1993, not 1990

Reasoning

The 2nd Respondent was only licensed and registered the business in 1993, and there were no records such as payslips to support an earlier start date. The 2nd Respondent worked at Kenyatta National Hospital up to 1992 and at KAM Pharmacy before licensing, so he could not have employed the Claimant before 1993.

p. 2
02

Procedural fairness (section 41)

Holding

Substantial compliance with section 41 despite informal process

Reasoning

The accounts of the confrontation conflicted. The Court preferred the Claimant's version, finding the 2nd Respondent in the heat of the moment ordered him to leave after finding his explanation unsatisfactory. There was some semblance of a hearing, and given the extremely lean structure of the business, the Court found substantial compliance with section 41.

p. 2
03

Substantive fairness (sections 43 and 45)

Holding

Termination was unfair; Respondents failed to prove abscondment

Reasoning

The Respondents alleged abscondment but did not prove an intention not to report to work, nor did they issue a show-cause letter. There was also no response to the demand letter to controvert the termination narrative. The burden under sections 43 and 45 was therefore not discharged.

p. 2
04

Service pay under section 35(5) & (6)

Holding

Service pay allowed as pleaded

Reasoning

There was no evidence that the Claimant was a member of a pension scheme or the National Social Security Fund, so the statutory exclusions in section 35(5) and (6) did not apply and the claim for service pay was allowed as pleaded.

p. 3

Legal principles established

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  • In an unfair termination dispute the employee bears the initial burden of showing an unfair termination occurred
  • An employer alleging abscondment must issue a show-cause notice before treating the employee as having absconded
  • Employers with extremely lean structures may be found in substantial compliance with section 41 procedural fairness despite informal processes
  • Where the employer fails to discharge the burden under sections 43 and 45, the termination is unfair

Court orders

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  1. 1.Declared that the Respondents did not prove that the Claimant absconded and that his employment was unfairly terminated
  2. 2.Awarded salary in lieu of notice of Kshs 15,000/-
  3. 3.Awarded service pay of Kshs 164,423/-
  4. 4.Total award of Kshs 179,423/- to the Claimant
  5. 5.Denied costs to the Claimant

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
  • Employment Act, 2007section 28(4)
  • Employment Act, 2007section 35(5) & (6)
Jurisdiction invoked
Jurisdiction as the Employment and Labour Relations Court over a dispute of unfair termination and terminal dues under the Employment Act, 2007 (provision not expressly cited in the judgment)

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, "Jeckoniah Onyango v Cedar Phamacare Ltd & 2 others [2020] KEELRC 1518 (KLR)", Case Analysis (2020). Cause No 347 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1518/eng@2020-02-24

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