Tom Ondari Angusai v Meru Slopes Hotel [2021] KEELRC 1177 (KLR)
The bottom line
#A Kenyan court ruled that an employer who cannot prove an employee resigned must treat the exit as unfair termination and pay compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether there was a termination of the claimant's employment
A case of termination was established; the Respondent's assertion of resignation/desertion was not proved in evidence.
The Respondent asserted that the claimant resigned and then absconded after a transfer, but produced no documentation of events before or after the alleged resignation. Its averments about labour office interventions at Nairobi and Meru were not established in evidence. In the absence of such proof, the court found that a termination of employment ensued in the circumstances.
Whether the termination was wrongful, unfair and unlawful
The termination was wrongful, unfair and unlawful for lack of procedural and substantive fairness.
The claimant submitted that he was never afforded an opportunity to be heard at disciplinary level, contrary to sections 41, 43 and 45 of the Employment Act, 2007, and that the defence was a mere denial. The court agreed, holding that the claimant had on a higher balance of probabilities established termination which the Respondent failed to rebut.
Whether the claimant is entitled to compensation for unlawful termination
Yes; having won on unfair termination, the claimant became entitled to relief, and the court awarded notice pay, March 2017 salary and one month's compensation.
Having established wrongful, unfair and unlawful termination, the claimant became entitled to the relief sought. The court allowed the claim and ordered payment of one month's salary in lieu of notice, salary for March 2017, and one month's pay as compensation for unlawful termination, totalling Kshs.62,100.00, plus a certificate of service within thirty days.
Legal principles established
#- Where an employer alleges an employee resigned or absconded but produces no documentation or evidence of the events surrounding the alleged resignation, a case of termination ensues.
- A termination effected without a disciplinary hearing and without reasons violates sections 41, 43 and 45 of the Employment Act, 2007 and is wrongful, unfair and unlawful.
Court orders
#- 1.One (1) month's salary in lieu of notice of Kshs.20,700.00
- 2.Salary for March, 2017 of Kshs.20,700.00
- 3.One (1) month's salary as compensation for unlawful termination of employment of Kshs.20,700.00
- 4.The Respondent is to issue a certificate of service to the claimant within thirty (30) days
- 5.Each party shall bear their costs of the claim
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and labour laws (Employment Act sections 41, 43, 45 and 49(c) invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tom Ondari Angusai v Meru Slopes Hotel [2021] KEELRC 1177 (KLR)", Case Analysis (2021). Not stated in the judgment (originate by Claimant's Amended Memorandum of Claim amended on 7th June, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1177/eng@2021-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.