Paul Odhiambo Onyango & another v Kalu Works Limited [2020] KEELRC 1722 (KLR)
The bottom line
#A Kenyan court ruled two dismissed employees were unfairly terminated because their employer could not prove it followed a fair disciplinary process or that they caused the loss.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the termination
Termination was procedurally unfair as the Respondent failed to prove the Claimants were served with notices to show cause or taken through a disciplinary hearing under Section 41 of the Employment Act.
The Claimants denied receiving show cause letters and no charges were ever preferred. RW1 admitted having no evidence of service and conceded the dismissal letters made no reference to the notice to show cause. Relying on Kenya Plantation & Agricultural Workers Union v Finlays Flowers, the court held that proof of service is critical, and the Respondent having failed to discharge that burden, the Section 41 process was not complied with.
Substantive justification for the termination
There was a valid reason to institute disciplinary process (a loss of Kshs.264,874 was not contested), but the Respondent failed to prove the Claimants caused the loss, making the termination unfair.
It was not contested that the Respondent lost money in staff sales and that the Claimants handled the sales. What was contested was proof of fraud by the Claimants. RW1 admitted there were no delivery notes or reports proving the discrepancies, and the interpreter of the alleged skype messages declined to write a statement. The evidentiary basis for the fraud allegation therefore collapsed.
Entitlement to reliefs
Claimants entitled to one month's salary in lieu of notice and nine months' compensation each, but not December 2011 salary or December 2012 allowance.
The court considered years of service, the manner of termination, and the fact that the Claimants received no terminal dues including October 2011 salary, awarding nine months' compensation rather than the twelve months sought. Prayers for December dues failed because employment ended in October 2011.
Legal principles established
#- An employer must prove both valid reason for termination and a fair disciplinary process under Section 41 of the Employment Act; failure on either renders the termination unfair.
- The burden of proving service of a notice to show cause rests on the employer.
- Under Section 47(5) of the Employment Act the employee bears the burden of proving unfair termination while the employer bears the burden of justifying the grounds for termination.
Court orders
#- 1.1st Claimant awarded one month's salary in lieu of notice of Kshs.19,400 and nine (9) months' compensation of Kshs.174,600, total Kshs.194,000
- 2.2nd Claimant awarded one month's salary in lieu of notice of Kshs.26,190 and nine (9) months' compensation of Kshs.235,710, total Kshs.261,900
- 3.Awards subject to statutory deductions
- 4.Claimants awarded costs of the suit
- 5.Interest to accrue at court rates
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination and wrongful dismissal claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Odhiambo Onyango & another v Kalu Works Limited [2020] KEELRC 1722 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1722/eng@2020-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.