Mary Pamela Wanga v Shamrock (K) Limited [2021] KEELRC 1095 (KLR)
The bottom line
#A Kenyan employer that ignored an unfair termination case and never produced contracts or a termination letter lost and was ordered to pay the employee.
What this practically means
#Executive summary
#Key legal issues
#Existence of employment relationship and effect of failure to file a response
The claimant was the respondent's employee; the respondent's failure to file a response meant the material allegations stood uncontroverted.
The respondent filed a notice of appointment but never filed a response to the memorandum of claim despite service on 13th July 2017. Under the ELRC (Procedure) Rules 2016 there was no need to file a notice of appointment before a response. Counsel holding brief was denied audience. The court therefore took the pleaded facts as undisputed, including the employment relationship from 12th May 2011 until termination on 1st August 2016.
Validity of reasons for termination
The respondent failed to prove valid reasons; the termination was unfair under Sections 43 and 45 of the Employment Act.
Section 43 places the burden on the employer to prove reasons for termination, failing which the termination is deemed unfair under Section 45. The claimant testified she was orally told by a Mr. Abdalla that her services were no longer required. No termination letter was issued and no response was filed, so the respondent proved no reason for the termination.
Procedural fairness under Section 41
Section 41 was not complied with; the termination violated natural justice.
Section 41 requires an employer, before terminating on grounds of misconduct, poor performance or physical incapacity, to explain the reasons to the employee in a language the employee understands and allow accompaniment by a fellow employee or union representative. The respondent adduced no evidence of compliance. The court relied on authorities cited by the claimant holding the right to be heard is delineated in Section 41.
Remedies
Remedies guided by Section 49 of the Employment Act were awarded: notice pay, leave pay, unpaid salary and a certificate of service.
Having found the termination unlawful, the court exercised its discretion under Section 49 of the Employment Act. It awarded one month's salary in lieu of notice (Kshs.20,000), leave pay for 5 years (Kshs.100,000), unpaid salary for May to August 2016 (Kshs.80,000), and ordered a certificate of service within 14 days, but found no ground to award the other prayers sought.
Legal principles established
#- Where an employer fails to produce a written contract, the burden of proving or disapproving an alleged term of employment lies on the employer (Section 10(7) Employment Act).
- Where the employer fails to prove reasons for termination, the termination is deemed unfair under Section 45 of the Employment Act.
- A respondent who fails to file a response is taken to admit the material allegations, leaving no factual disputes for trial.
Court orders
#- 1.One month salary in lieu of notice of Kshs.20,000/= awarded
- 2.Leave pay for 5 years of Kshs.100,000/= awarded
- 3.Unpaid salary for May, June, July and August 2016 of Kshs.80,000/= awarded
- 4.Certificate of service to be issued within 14 days of service
- 5.No orders as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court established under Article 162(2) of the Constitution, jurisdiction per the Employment and Labour Relations Court Act; suit on unfair termination under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Pamela Wanga v Shamrock (K) Limited [2021] KEELRC 1095 (KLR)", Case Analysis (2021). Cause No. 1223 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1095/eng@2021-08-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.