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ELRCPartially AllowedELRC Cause (Nakuru) - Memorandum of Claim dated 16th November 2015· [2021] KEELRC 1507 (KLR)

Joshua Gitau Wachira v Professional Clean Care Ltd [2021] KEELRC 1507 (KLR)

Employment and Labour Relations Court
17 June 2021
HWHellen Wasilwa
2,039 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that firing a worker for absconding without proving it or following due process is unfair dismissal.

What this practically means

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Executive summary

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The claimant, employed by the respondent in April 2009 as a cleaner and transferred from Tumutumu Hospital in Nyeri to Eveready Limited Nakuru in January 2011, claimed wrongful termination and non-payment of terminal dues arising from the termination of his employment in September 2013. He sought declaration of entitlement to terminal dues, Kshs. 335,453 in dues and compensatory damages, interest and costs, contending he was sent away without notice, reasons or a disciplinary hearing, and that he was underpaid contrary to the Regulation of Wages Orders. The respondent maintained that the claimant absconded duty after collecting his August 2013 salary, relied on a history of warning letters and drunkenness, and argued the claimant bore the burden of proving unfair termination. The court found that no witness testified to the alleged abscondment, that the respondent made no attempt to trace the claimant through his last known address to show cause, and that no reason or fair process was established. Relying on section 45(2) of the Employment Act, the court held the termination unfair and unjustified. It also found the payslips showed underpayment and non-payment of house allowance. The court awarded one month's salary in lieu of notice, underpayment arrears of Kshs. 69,848, house allowance for three years (the rest being time barred), ten months' salary as compensation for unlawful dismissal, and unpaid salary for days worked in September 2013, less statutory deductions, with costs and interest to the claimant.

Key legal issues

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01

Whether the termination was unfair

Holding

The respondent failed to prove a valid reason or fair procedure; no witness testified to the alleged abscondment and the claimant was not subjected to any disciplinary process

Reasoning

The respondent claimed the claimant absconded but RW-1 was not based in Nakuru and only heard of the abscondment from an informant who never testified. No effort was made to trace the claimant through his last known address or require him to show cause. Section 45(2) of the Employment Act places the burden on the employer to prove validity of reason and fairness of procedure, which it failed to discharge.

p. 3
02

Underpayment

Holding

The claimant established underpayment; payslips showed he was not paid the minimum wage

Reasoning

The payslips produced in court demonstrated that the claimant was paid below the prescribed minimum wage under the Regulation of Wages Orders. The court accepted the underpayment figures submitted by the claimant covering 2010 to 2013 and awarded Kshs. 69,848 as arrears.

p. 3

Legal principles established

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  • An employer must prove both a valid reason and a fair procedure for termination; failing which the termination is unfair
  • Where an employer alleges abscondment, it must lead evidence of the abscondment and attempt to seek out the employee through his last known address to show cause

Court orders

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  1. 1.Payment of 1 month salary in lieu of notice Kshs. 9,024
  2. 2.Payment of salary arrears due to underpayment from 2010 to 2013 Kshs. 69,848
  3. 3.Payment of unpaid house allowance computed at 15% x 9,024 x 36 = Kshs. 487,296 (rest of the years being time barred)
  4. 4.Payment of 10 months' salary as compensation for unlawful dismissal Kshs. 90,240
  5. 5.Payment of unpaid salary for 7 days in September 2013 Kshs. 902
  6. 6.Less statutory deductions from the award
  7. 7.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment Actsections 35(1), 41, 44(a)(b), 45(1), 45(2), 47(5)
  • Labour Institutions ActLegal Notices No. 98 of 2010, 64 of 2011, 71 of 2013 and 197 of 2013
  • Regulation of Wages Order2010, Column 4

Cases cited (3)

  • Zuhura Nyokabi –v- Reinman Company Limited
    (2015) eKLR
  • Kennedy Maina Mirera –v- Barclays Bank of Kenya
    [2018] eKLR
  • Consolata Kemunto Aming’a –v- Milimani High School
    (UR)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007

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, "Joshua Gitau Wachira v Professional Clean Care Ltd [2021] KEELRC 1507 (KLR)", Case Analysis (2021). ELRC Cause (Nakuru) - Memorandum of Claim dated 16th November 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1507/eng@2021-06-17

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