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ELRCPartially AllowedNot stated in the judgment as provided· [2021] KEELRC 838 (KLR)

Dickson Onyango Odunga v Chandaria Industries Limited [2021] KEELRC 838 (KLR)

Employment and Labour Relations Court
7 October 2021
JGJacob Gakeri
2,350 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan employer fired a driver for absconding duty but never tried to phone him, so the Employment Court ruled the dismissal unfair and awarded damages.

What this practically means

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Executive summary

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The claimant, a driver employed by the respondent on 26th February 2015 at a monthly salary of Kshs. 29,701.08, sued for terminal dues alleging constructive and unfair termination after he was allegedly suspended by word of mouth on 25th July 2016 following a misdelivery incident and never recalled. The respondent asserted that the claimant and two colleagues unlawfully sold customers' goods on 23rd July 2016 and absconded duty from 25th July 2016, and that show cause and termination letters were sent to the claimant's postal address. The court framed two issues: whether the termination was wrongful and unfair, and whether the claimant was entitled to the reliefs sought. Applying the settled jurisprudence that an employer alleging desertion must demonstrate reasonable efforts to contact the employee, the court found the respondent made no attempt to contact the claimant despite having his mobile phone number, and led no evidence that the letters were actually posted or received. The defence of absconding duty was therefore not established and the termination was unfair. On reliefs, the court awarded one month's salary in lieu of notice (Kshs. 29,701.08) and unpaid leave (Kshs. 29,701.08), both uncontested, and one month's salary as compensation for unfair termination given the claimant's short service of about one year and five months and his contribution to the termination. Claims for house allowance and service pay were rejected for lack of evidence, the salary being inclusive of house allowance and NSSF contributions being remitted. Judgment was entered for the claimant for Kshs. 89,103.24 with interest at court rates and costs of the suit. The respondent did not file submissions.

Key legal issues

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01

Whether the termination was wrongful and unfair

Holding

The defence of absconding duty was not established; the respondent made no attempt to contact the claimant before issuing the show cause and termination letters, and led no evidence the letters were actually posted, so the termination was unfair

Reasoning

The respondent alleged the claimant absconded duty after a misdelivery incident. The applicable jurisprudence requires an employer alleging desertion to show reasonable efforts to contact the employee. The respondent had the claimant's mobile number but made no attempt to reach him. It also did not prove the three letters were posted or received. The defence of absconding therefore failed and the termination was unfair.

p. 3
02

Notice pay and unpaid leave

Holding

Awarded in full as the respondent did not contest these claims

Reasoning

The respondent did not contest the claim for one month's salary in lieu of notice, and RW1 testified he had no objection to the unpaid leave claim. The court accordingly awarded Kshs. 29,701.08 for each head.

p. 3
03

Compensation for unfair termination under section 49 of the Employment Act

Holding

One month's salary awarded instead of the 12 months sought, considering the short length of service and the claimant's contribution to the termination

Reasoning

Having found the termination unfair, the court considered that the claimant served for about one year and five months and contributed to the termination. In those circumstances, one month's salary equivalent (Kshs. 29,701.08) was held to be sufficient compensation under section 49(1).

p. 4

Legal principles established

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  • Where an employer alleges an employee absconded duty, the employer must demonstrate it took reasonable steps to contact the employee to establish the circumstances of the desertion

Court orders

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  1. 1.Judgment entered for the claimant for Kshs. 89,103.24
  2. 2.Award of Kshs. 29,701.08 being one month's salary in lieu of notice
  3. 3.Award of Kshs. 29,701.08 for unpaid leave
  4. 4.Award of Kshs. 29,701.08 as compensation for unfair termination (one month's salary)
  5. 5.Interest at court rates from the date of judgment till payment in full
  6. 6.Costs of the suit to the claimant

Authorities

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Legislation

  • Employment Actsection 35
  • Employment Actsection 40
  • Employment Actsection 41
  • Employment Actsection 42
  • Employment Actsection 43
  • Employment Actsection 45
  • Employment Actsection 49(1)

Cases cited (6)

  • Jane Njeri Wanyoike & 23 others v Pan Africa Insurance Co. Limited & 2 others
    [2017] eKLR
  • Pamela K. Butalany v University Council for the Kenya Polytechnic University College
    [2015] eKLR
  • John Mwanzia Mbithuka v Mukesh Malde (Managing Director) & another
    [2014] eKLR
  • Boniface Mwangi v B.O.M. Iyego Secondary School
    [2019] eKLR
  • Simon Mbithi Mbane v Inter Security Services
    [2018] eKLR
  • Nzioka v Smart Coatings Limited
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the Employment and Labour Relations Court Act (employment relationship between driver and employer)

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, "Dickson Onyango Odunga v Chandaria Industries Limited [2021] KEELRC 838 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/838/eng@2021-10-07

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