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ELRCPartially AllowedNot stated in the judgment (suit filed on 19/3/2014)· [2020] KEELRC 1785 (KLR)

Julius Orina Oirere v Eastleigh Pharmaceuticals Limited [2020] KEELRC 1785 (KLR)

Employment and Labour Relations Court
22 January 2020
1,858 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer who fires a worker without notice, a hearing, or a written reason was ordered to pay over Kshs. 280,000 in compensation.

What this practically means

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Executive summary

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The Claimant sued for compensation for unlawful and unfair termination and terminal benefits, alleging he was employed from 2007 as an Accounts Assistant on Kshs.31,000 per month and was on 14th February 2014 told by the Director to vacate his office immediately, with no written communication ever following. The Respondent denied dismissing him, contending he deserted work, that he served only part-time from 2008 and full-time from 2010, and that he earned Kshs.19,790 per month. The court framed two issues: whether the Claimant absconded or was unduly dismissed, and whether he was entitled to the reliefs sought. It found the Respondent's witnesses gave conflicting dates for the alleged desertion and offered no reason for it, while the Claimant's prompt demand letter corroborated his account. The court held the dismissal was summary, without notice, notice to show cause or disciplinary hearing, and without valid reason, violating Sections 36, 41, 43 and 45 of the Employment Act. Because the Respondent, contrary to its statutory obligation, never issued a letter of appointment and could produce only one pay slip, the court drew an adverse presumption and accepted the Claimant's service from 2007 at Kshs.31,000 monthly. Applying Standard Group Limited v Jerry Luesby (2018) eKLR, the court awarded six months' salary as compensation, one month's notice pay, four years' untaken leave, unpaid salary to 14/2/2014, and three years' service pay, totaling Kshs.282,000, with interest and costs of the suit. Judgment was delivered on 22nd January 2020 by Mathews N. Nduma, Judge.

Key legal issues

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01

Whether the Claimant absconded or was dismissed

Holding

The Claimant was summarily dismissed without notice or valid reason; he did not abscond.

Reasoning

RW1 and RW2 gave conflicting dates for the alleged desertion (24/2/2014 and 13/2/2014) and offered no reason for it. The demand letter dated 24/2/2014 was consistent with the Claimant's testimony, and the Respondent never responded to it or wrote any letter about desertion. The court believed the Claimant's account that he was told to vacate his office on 14/2/2014 and to await written communication that never came.

p. 3
02

Evidential effect of the employer's failure to issue a written letter of appointment

Holding

An adverse presumption is drawn against the employer; the court accepted the Claimant's version that he served from 2007 at Kshs.31,000 per month.

Reasoning

Section 2 of the Employment Act obligates an employer to provide a written letter of appointment. The Respondent admitted it failed to do so and could produce only one computer-generated pay slip. Where parties adduce conflicting evidence on matters the law requires to be in writing, the court presumes the unproduced document would have been adverse to the party obligated to produce it.

p. 3
03

Quantum of compensation and terminal benefits

Holding

Six months' salary compensation plus notice pay, four years' untaken leave, unpaid salary to 14/2/2014, and service pay for 3 years.

Reasoning

Guided by Standard Group Limited v Jerry Luesby (2018) eKLR on assessing compensation, the court considered the Claimant's sudden loss of employment at 45 years, loss of career prospects, non-contribution to the dismissal, non-payment of terminal benefits, and the Respondent's failure to remit NHIF and NSSF for 3 years, awarding the equivalent of six months' salary.

p. 3

Legal principles established

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  • Where the law obligates an employer to provide written particulars (e.g. a letter of appointment) and the employer fails to produce it, the court presumes its contents would have been adverse to the employer.
  • Summary dismissal without notice, notice to show cause or a disciplinary hearing, and without a valid reason, violates Sections 36, 41, 43 and 45 of the Employment Act.

Court orders

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  1. 1.Award of six months' salary as compensation for unlawful dismissal (Kshs. 186,000)
  2. 2.Kshs. 31,000 in lieu of one month notice
  3. 3.Kshs. 124,000 in lieu of four years untaken leave
  4. 4.Unpaid salary to 14/2/2014 in the sum of Kshs. 15,500
  5. 5.Service pay for 3 years at 15 days salary per year in the sum of Kshs. 49,500
  6. 6.Total award of Kshs. 282,000
  7. 7.Interest at court rates from date of judgment in respect of compensation and from date of filing suit in respect of terminal benefits till payment in full
  8. 8.Costs of the suit

Authorities

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Legislation

  • Employment ActSections 2, 36, 41, 43, 45, 49(1)(c) and (4)

Cases cited (1)

  • Standard Group Limited V Jerry Luesby
    (2018) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Julius Orina Oirere v Eastleigh Pharmaceuticals Limited [2020] KEELRC 1785 (KLR)", Case Analysis (2020). Not stated in the judgment (suit filed on 19/3/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1785/eng@2020-01-22

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