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ELRCPartially AllowedNot stated in the judgment (originate by Claimant's Amended Memorandum of Claim amended on 7th June, 2018)· [2021] KEELRC 1177 (KLR)

Tom Ondari Angusai v Meru Slopes Hotel [2021] KEELRC 1177 (KLR)

Employment and Labour Relations Court
19 July 2021
1,417 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, employed as a chef by the Respondent on 6th October 2015 at a monthly salary of Kshs.18,000.00 plus house allowance of Kshs.3,000.00, claimed constructive and unfair termination effective 31st March 2017. His case was that after he tendered a one-month resignation notice in February 2017, the Respondent transferred him from the kitchen to the public area as a cleaner, and upon his objection ordered him on compulsory leave after which he was told he was no longer an employee. He claimed unfair termination, notice pay, house allowance, overtime, public holiday and annual leave pay, compensation under section 49(c), a certificate of service and unpaid March 2017 salary, totalling Kshs.478,765.38. The Respondent denied the claim, asserting the claimant was caught issuing unreceipted food, apologised by letter dated 5th February 2017, was lawfully transferred under his appointment letter, and then absconded; it also alleged labour office interventions in Nairobi and Meru. The dispute was disposed of by written submissions, the court framing four issues. It found that the Respondent produced no documentation evidencing the alleged resignation or the labour office interventions, so a termination ensued; and that the termination, effected without a hearing or reasons, was procedurally and substantively unfair contrary to sections 41, 43 and 45 of the Employment Act, 2007. The claim was allowed in part: notice pay of Kshs.20,700.00, March 2017 salary of Kshs.20,700.00, one month's compensation of Kshs.20,700.00 (total Kshs.62,100.00), and a certificate of service within thirty days. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether there was a termination of the claimant's employment

Holding

A case of termination was established; the Respondent's assertion of resignation/desertion was not proved in evidence.

Reasoning

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.

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02

Whether the termination was wrongful, unfair and unlawful

Holding

The termination was wrongful, unfair and unlawful for lack of procedural and substantive fairness.

Reasoning

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.

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03

Whether the claimant is entitled to compensation for unlawful termination

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.One (1) month's salary in lieu of notice of Kshs.20,700.00
  2. 2.Salary for March, 2017 of Kshs.20,700.00
  3. 3.One (1) month's salary as compensation for unlawful termination of employment of Kshs.20,700.00
  4. 4.The Respondent is to issue a certificate of service to the claimant within thirty (30) days
  5. 5.Each party shall bear their costs of the claim

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
  • Employment Act, 2007section 49(c)
  • Constitution of Kenyanot specified (referenced generally re contravention with provisions of Labour Laws and the Constitution)
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

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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, "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.