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ELRCPartially AllowedCause No 449 of 2017· [2021] KEELRC 138 (KLR)

Raustus Ayua Odioko v China Wu Yi Company Limited [2021] KEELRC 138 (KLR)

Employment and Labour Relations Court
30 November 2021
3,650 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 sacks an injured worker without a proven, valid reason or a hearing must pay damages, notice pay, leave and service pay.

What this practically means

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Executive summary

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The Claimant, employed as a labourer/cleaner from about January 2012 at a monthly salary of Kshs. 12,880, suffered a workplace injury in July 2014 in which a machine cut his fingers. He was treated at Coptic Hospital at the Respondent's cost and discharged on 18th July 2014, thereafter attending for dressings. When he returned to work he was told there was no work for him. The Respondent contended that he absconded duty and was summarily terminated by operation of the law when he demanded terminal dues. The court framed four issues: substantive fairness, procedural fairness, reliefs, and costs. On substantive fairness, the court held that under sections 43 and 45 of the Employment Act the employer bore the burden of proving a valid and fair reason. The Respondent's evidence was internally inconsistent - its witness claimed the Claimant's whereabouts were unknown, yet testified the employer used to take him to hospital - and no evidence showed attempts to call him back. Substantive fairness failed. On procedure, the court found the mandatory requirements of section 41 were not met: the Claimant was neither informed of the contemplated dismissal nor heard. The termination was therefore unfair both substantively and procedurally. On reliefs, the court awarded one month's salary in lieu of notice (Kshs. 12,880), unpaid leave compensation (Kshs. 32,160), service pay (Kshs. 14,812), and 7 months' gross salary as compensation under section 49(1)(c) (Kshs. 90,160), with costs and interest. Claims for public holidays worked and overtime were declined for lack of specificity and evidence. Judgment was entered for the Claimant accordingly on 30th November 2021.

Key legal issues

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01

Whether the termination was substantively fair

Holding

The termination lacked a valid and fair reason; the employer failed to prove abscondment and its evidence was internally inconsistent

Reasoning

Section 43 places the burden of proving the reason for termination on the employer, and section 45 requires the reason to be valid and fair. Two competing reasons emerged - injury-related dismissal versus abscondment. The Respondent's witness statement that the Claimant's whereabouts were unknown conflicted with her testimony that the employer used to take him to hospital. No evidence was led showing attempts to recall him to work. Substantive fairness therefore failed.

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02

Whether the termination was procedurally fair

Holding

The termination was procedurally unfair as no notice of contemplated dismissal, grounds, or opportunity to be heard was given

Reasoning

Section 41 of the Employment Act sets out the mandatory procedure for termination: notification of the grounds, hearing of representations, and consideration thereof. The Respondent's evidence was silent on the procedure followed. The Claimant was not informed of the intention to summarily dismiss him nor given any chance to make representations. The mandatory procedure having been breached, the termination was procedurally unfair.

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What reliefs were available

Holding

Notice pay, unpaid leave, service pay and 7 months' compensation under section 49(1)(c) awarded; public holiday and overtime claims declined for want of specificity and evidence

Reasoning

Having found both substantive and procedural unfairness, the court awarded one month's salary in lieu of notice, unpaid leave compensation of Kshs. 32,160 as the custodian of records (employer) did not controvert it, service pay since the Claimant was not a member of NSSF or NHIF, and 7 months' gross salary as compensation under section 49(1)(c), considering the workplace injury genesis and the Respondent's lack of candour.

Legal principles established

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  • Under section 43 of the Employment Act the employer bears the burden of proving the reason(s) for termination, failing which the termination is unfair under section 45
  • Procedural fairness under section 41 is mandatory; failure to inform the employee of contemplated dismissal and to hear them renders termination unfair
  • Where an employee is absent allegedly for abscondment, the employer must show steps taken to reach the employee before dismissal

Court orders

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  1. 1.One month's salary in lieu of notice, Kshs. 12,880.
  2. 2.Unpaid leave compensation, Kshs. 32,160.
  3. 3.Service pay, Kshs. 14,812.
  4. 4.Compensation under section 49 (1) (c), Kshs. 90,160.
  5. 5.Costs of the suit.
  6. 6.Interest at court rates from the date of filing this suit till full payment.

Authorities

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Legislation

  • Employment Act, 2007section 51
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
  • Employment Act, 2007section 41
  • Employment Act, 2007section 35
  • Employment Act, 2007section 49
  • Employment Act, 2007section 31
  • Employment Act, 2007section 44

Cases cited (4)

  • Banking Insurance and Finance Union (Kenya) vs Barclays Bank of Kenya Limited
    [2014] eKLR
  • Kenya Commercial Food and Allied Workers vs Meru North Farmers Sacco Limited
    [2014] eKLR
  • Godfrey Anjere vs Unique Supplier Limited
    [2015] eKLR
  • SACWU vs Dyasi
    [2001] 7 BLLR 731 (LAC)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the 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, "Raustus Ayua Odioko v China Wu Yi Company Limited [2021] KEELRC 138 (KLR)", Case Analysis (2021). Cause No 449 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/138/eng@2021-11-30

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