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ELRCDismissedMemorandum of claim dated 23rd March 2012· [2020] KEELRC 1758 (KLR)

Angela Okutoto Oteo v Margaret Maina Wanjiru [2020] KEELRC 1758 (KLR)

Employment and Labour Relations Court
24 January 2020
MOMaureen Onyango
1,622 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan domestic worker's dismissal claim failed because she couldn't prove she was actually fired — employees must carry the burden of proof.

What this practically means

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Executive summary

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The claimant, a domestic worker, sued the respondent alleging verbal termination of her employment in January 2012 and non-payment of terminal dues, claiming one month's salary in lieu of notice, accrued leave for three years, underpayment for twenty years, severance pay, twelve months' compensation for wrongful dismissal, a certificate of service, continued monthly salary and costs, totalling Kshs.1,524,309.60. The respondent denied dismissing the claimant, asserting that after taking her to Karen Hospital on 4th January 2012 following a fall, the claimant packed her belongings, took her money and personal items and left, thereafter refusing to answer her calls. Both parties adopted their witness statements and testified. The court identified the sole point of departure as how the claimant left employment. Applying Section 47(5) of the Employment Act, which places the burden of proving unfair termination or wrongful dismissal on the employee, the court held that the claimant had not discharged that burden. Her account of dismissal through a fellow worker, Mr. Karago, was found implausible: Karago was not mentioned in the memorandum of claim or witness statement, the respondent was in hospital at the material time, and the claimant never contacted the respondent to verify the alleged message. The court preferred the respondent's version as more logical. All remedies, being premised on a termination, failed; severance pay applies only to redundancy and compensation only to proved unfair termination. The entire claim was dismissed with costs to the respondent as a vexatious claim.

Key legal issues

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01

Whether the claimant proved that the respondent terminated her employment

Holding

The claimant failed to discharge the statutory burden of proving termination; the court found there was no termination at all and preferred the respondent's version that the claimant left on her own.

Reasoning

Section 47(5) of the Employment Act places the burden of proving unfair termination or wrongful dismissal on the employee. The respondent denied dismissing the claimant, who could not recall when she left employment, never called or verified with the respondent after the alleged message from Mr. Karago, and never mentioned Karago in her pleadings or witness statement. The court found the respondent's account more logical and held that no termination by the respondent was proved.

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02

Whether the claimant was entitled to the various remedies claimed

Holding

All remedies failed because they were premised on a termination that was not proved.

Reasoning

Pay in lieu of notice, leave and underpayment claims depended on proof of termination. Severance pay is payable only on redundancy, and compensation under the Employment Act only upon proof of unfair termination. Having found no termination, the court dismissed the entire claim and, characterising it as vexatious, awarded costs to the respondent.

p. 3

Legal principles established

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  • In complaints of unfair termination or wrongful dismissal, the burden of proving that the termination was unfair or wrongful rests on the employee.

Court orders

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  1. 1.The entire claim is dismissed with costs on grounds that it is a vexatious claim

Authorities

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Legislation

  • Employment ActSection 47(5)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, Section 47(5))

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, "Angela Okutoto Oteo v Margaret Maina Wanjiru [2020] KEELRC 1758 (KLR)", Case Analysis (2020). Memorandum of claim dated 23rd March 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1758/eng@2020-01-24

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