Erick Mungai Phoro v Corrugated Sheets Limited [2021] KEELRC 1019 (KLR)

Employment and Labour Relations Court

16 September 2021

LNLINNET NDOLO

1,039 words in judgment

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The bottom line

A Kenyan court threw out an unfair dismissal claim because the employee quit and never returned, but still awarded him unpaid leave and service pay.

What this practically means

Executive summary

The Claimant, Erick Mungai Phoro, sued Corrugated Sheets Limited (Pickling Division) seeking notice pay, leave pay, service pay, underpayment damages and 12 months' salary as compensation for alleged wrongful dismissal. He claimed he was employed on 20th June 2014 as an effluent treatment plant operator earning Kshs.450 daily and that his employment was verbally terminated on 27th October 2015 without justifiable cause and without a hearing. The Respondent admitted the employment but denied termination, asserting that the Claimant deserted duty in early November 2015. It relied on the fact that after receiving a demand letter it invited the Claimant to return to work, but he declined because he had obtained another job. The Court framed two issues: whether wrongful dismissal was made out, and whether the remedies sought were due. Applying Section 47(5) of the Employment Act, it held the burden of proving wrongful dismissal lay on the employee. On a balance of probability, it rejected the Claimant's account of verbal termination and adopted the Respondent's version that he walked away from the job, so the claims for compensation and notice pay failed. However, as the employer had not availed records showing the Claimant had exhausted his leave or contributed to NSSF, the leave pay and service pay claims succeeded. The underpayment claim was dismissed as unproved. Judgment was entered for the Claimant for Kshs.18,563 with interest at court rates from the date of judgment, plus costs. The judgment was delivered virtually via Microsoft Teams due to COVID-19 restrictions.

Key legal issues

Whether the Claimant was wrongfully dismissed

Holding

The claim of verbal termination was rejected; the Court found the Claimant deserted duty and did not return despite being invited to do so

Reasoning

Applying Section 47(5) of the Employment Act, the burden lay on the employee to lay believable grounds for the complaint. The Claimant alleged verbal termination by an unnamed person following a theft of a pneumatic pump, while the Respondent alleged desertion. When invited to return to work after a demand letter, the Claimant declined because he had another job. On a balance of probability, the Respondent's version that the Claimant walked away was adopted, and the claims for compensation and notice pay failed.

p. 2

Whether the Claimant was entitled to leave pay and service pay

Holding

The claims for leave pay and service pay succeeded because the employer failed to avail records showing the Claimant had exhausted his leave and was contributing to NSSF

Reasoning

The Court held that the employer is the custodian of employment records and ought to have produced records showing the Claimant had exhausted his leave entitlement and was a contributing NSSF member. In the absence of such records, the claims for leave pay (including prorata leave) and service pay were allowed, quantified at Kshs.18,563 in total.

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Whether the Claimant was underpaid

Holding

The claim for underpayment was not proved and was dismissed

Reasoning

The Respondent denied that the Claimant was underpaid and stated that he was paid in line with all statutory provisions during his employment. The Court found the claim for underpayment unproved and dismissed it.

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Legal principles established

The burden of proving unfair termination or wrongful dismissal rests on the employee, while the burden of justifying the grounds for termination rests on the employer
An employee who refuses an employer's invitation to return to work cannot claim the compensatory awards under Section 49 of the Employment Act
The employer, as custodian of employment records, must avail records to disprove leave pay and service pay claims; in their absence those claims succeed

Court orders

1.Judgment entered in favour of the Claimant for Kshs.18,563 comprising leave pay for 1 year (Kshs.9,450), prorata leave for 3 months (Kshs.2,363) and service pay for 1 year (Kshs.6,750)
2.The award to attract interest at court rates from the date of judgment until payment in full
3.The Claimant awarded the costs of the case

Authorities

Legislation

Employment ActSection 47(5)
Employment ActSection 49

Cases cited (1)

Daniel Mueke v Bhogals Auto World
[2014] eKLR

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim; no specific constitutional provision cited)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Erick Mungai Phoro v Corrugated Sheets Limited [2021] KEELRC 1019 (KLR)", Case Analysis (2021). Cause No 574 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1019/eng@2021-09-16

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