Micah Gentunywa Ombongi v Laboratory and Allied Limited [2021] KEELRC 1690 (KLR)

The Respondent's own witness admitted there was no letter to show cause and no hearing. The alleged reason, loss of trust and confidence, was not supported by any details or particulars. The Claimant's record was clean and he had recently been promoted, so he did not contribute to the decision to terminate. The Respondent failed to discharge its evidential burden under Section 47(5) of the Employment Act to justify termination.

The Respondent alleged a notice dated 29 July 2016, but the Claimant denied receipt and disputed the signature acknowledging receipt. Even if served, the letter was indicated as received on 18 August 2016, which would not amount to one month's notice before termination on or about 30 August 2016. The Claimant was therefore allowed notice pay at Kshs. 60,798.

In exercising discretion, the Court considered that the Claimant had worked only 2 years, was paid August salary and leave dues, and did not show how long he expected to continue working or whether he sought alternative employment. Mitigating factors included his recent promotion, clean record, and lack of contribution to the termination. Termination had both substantive and procedural imperfections, justifying 6 months' gross salary.

The Claimant confirmed under cross-examination that he was subscribed to the N.S.S.F, which bars a claim for service pay. He did not exhibit any contract, wage order or other instrument entitling him to gratuity. On relocation, he had no receipts and no relocation policy was exhibited, leaving the prayer without factual or legal support. Both prayers were accordingly declined.