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ELRCPartially AllowedNot stated in the judgment· [2021] KEELRC 742 (KLR)

Obed M. Pius v Koppert Biological Systems [2021] KEELRC 742 (KLR)

Employment and Labour Relations Court
15 October 2021
3,100 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Nakuru court ruled the employer unfairly fired an employee and failed to prove desertion, awarding him over Kshs.300,000 plus a certificate of service.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Logistics Assistant from 25.3.2008, sued on 27.7.2016 alleging that on 20.3.2015 he was verbally dismissed without notice, a legitimate reason or a fair hearing. He sought a declaration of unlawful termination, 12 months' salary as compensation, pay in lieu of notice, unpaid leave, overtime, house allowance, certificate of service and costs. The Respondent contended that the claimant deserted work on 20.3.2015 to evade a disciplinary hearing over alleged fraud, theft and stock shrinkage, and asked for dismissal of the suit. The court framed four issues: dismissal versus desertion, validity of the reason, fairness of procedure, and entitlement to reliefs. It found the respondent had failed to prove desertion, since no efforts to reach the claimant were pleaded or proved and the other attendees of the meeting were not called as witnesses. The reason for dismissal - fraud, theft and shrinkage - was not proved, and the two supporting witnesses admitted they had no evidence linking the claimant to theft. Applying section 41 of the Employment Act, the court held that fair procedure was not followed because the claimant was not told he was attending a disciplinary hearing nor informed of his right to be accompanied. Relying on Kenfreight (EA) Limited v Benson K. Nguti, the court declared the dismissal unfair, wrongful and unlawful. It awarded one month's pay in lieu of notice (Kshs.52,703), three months' gross pay as damages (Kshs.158,109), 44 leave days' pay (Kshs.89,189.69), a certificate of service, costs and interest, totalling Kshs.300,001.70 less statutory deductions. The house allowance claim was withdrawn and the overtime claim dismissed for lack of particulars.

Key legal issues

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01

Whether the claimant was dismissed or deserted

Holding

The respondent failed to prove desertion; the court found the claimant was dismissed on 20.3.2015.

Reasoning

The respondent bore the burden of proving desertion but did not plead or prove that efforts were made to reach the claimant after the alleged desertion. The persons said to have attended the disciplinary meeting with the claimant were not called to rebut his assertion that he was verbally dismissed, so the allegation of desertion failed.

p. 3
02

Whether there was a valid and fair reason for the dismissal

Holding

No valid and fair reason was proved; the allegations of fraud, theft and stock shrinkage were unsupported.

Reasoning

The respondent denied dismissing the claimant and so made no effort to prove the validity of the reasons. Rw2 and Rw3 admitted they had no evidence linking the claimant to theft, and the fraud was never reported to the police. The claim put forward in submissions (desertion) was neither pleaded nor supported by evidence.

p. 4
03

Whether a fair procedure was followed before the dismissal

Holding

Fair procedure under section 41 of the Employment Act was not followed.

Reasoning

The claimant was summoned to a meeting without notice that it was a disciplinary hearing, was not informed of his right to be accompanied by a fellow employee of his choice, and was not heard properly before the dismissal. Section 41 is mandatory and was breached.

p. 4
04

Entitlement to reliefs

Holding

Declaration of unfair termination granted; one month pay in lieu of notice, 3 months' pay as damages, 44 leave days' pay, and certificate of service awarded; house allowance claim withdrawn, overtime claim dismissed.

Reasoning

Damages were awarded under section 49(1) of the Employment Act considering the claimant's about 7 years of service, tempered by his disciplinary record and warning letters. Leave was limited to the 44 days admitted. Certificate of service is a statutory right under section 51.

p. 4

Legal principles established

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  • The burden of proving the reason for terminating employment lies on the employer under sections 43 and 45 of the Employment Act.
  • Before termination on grounds of misconduct, an employer must explain the reasons to the employee in a language he understands and allow him to be accompanied by a fellow employee or union representative, and must hear and consider his representations under section 41 of the Employment Act.

Court orders

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  1. 1.Declaration that the dismissal was unfair, wrongful and unlawful within the meaning of Section 45 of the Employment Act
  2. 2.Judgment for the Claimant in the sum of Kshs.300,001.70 less statutory deductions
  3. 3.One month salary in lieu of notice of Kshs.52,703
  4. 4.Damages of 3 months gross pay of Kshs.158,109 for unfair termination
  5. 5.Accrued leave pay of Kshs.89,189.69 for 44 leave days
  6. 6.Issuance of certificate of service
  7. 7.Costs of the suit to the Claimant
  8. 8.Interest at court rates from the date of the judgment

Authorities

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Legislation

  • Employment Actsection 41(1)
  • Employment Actsection 41(2)
  • Employment Actsection 42(1)
  • Employment Actsection 43
  • Employment Actsection 44(3) and (4)
  • Employment Actsection 45
  • Employment Actsection 49(1)
  • Employment Actsection 51
  • ELRC Procedure RulesRule 28(3)

Cases cited (1)

  • Kenfreight (EA) Limited V. Benson K. Nguti
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (ELRC Procedure Rules referenced)

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, "Obed M. Pius v Koppert Biological Systems [2021] KEELRC 742 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/742/eng@2021-10-15

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