Kenya Building Construction Timber and Furniture Industries Employees Union v Imara Enterprises Limited [2021] KEELRC 2242 (KLR)
The bottom line
#A Kenyan court awarded a dismissed worker Kshs.388,436 after finding his employer fired him without a valid reason or a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Existence of an employment relationship in an undefended claim
The claimant proved the employment relationship through the grievant's NSSF Member Statement of Account showing the Respondent as employer.
Under Section 47(5) of the Employment Act the burden of proving unfair termination rests on the employee. In an undefended suit the claimant must prove all facts including the employment relationship. The NSSF Member Statement of Account for the period to 31st December 2013 indicated the Respondent as the grievant's employer, and the evidence was uncontroverted, satisfying the burden.
Fairness of the termination
The termination was unfair: no valid reason was shown and the mandatory hearing and notification requirements of Section 41 were not met.
Hearing and notification before termination are mandatory under Section 41 of the Employment Act, and under Section 43 the employer must prove a valid reason. The Respondent did not participate and there was no evidence controverting the grievant's averments that no reasons or hearing preceded the termination, so the dismissal failed both substantive and procedural fairness tests.
Remedies payable
Underpayments for 2012-2014, one month's notice pay, 12 months' compensation for unfair termination and leave pay awarded; service pay refused because the grievant was an NSSF member.
The court recalculated underpayments strictly per the Regulation of Wages (General) (Amendment) Order for 2012 to 2014. Notice was limited to one month absent evidence of a two-month contract term. Compensation was set at 12 months' salary given length of service and no contributory conduct. Leave pay was awarded in absence of employer records, and service pay was excluded by NSSF membership.
Legal principles established
#- In an undefended claim, the claimant must establish all the facts of the claim, including the existence of an employment relationship, as a preliminary issue.
- For a termination to pass the fairness test, there must be both substantive justification and procedural fairness.
- It is the employer's duty to keep records including annual leave taken and leave due, and to produce them in legal proceedings.
Court orders
#- 1.A declaration that the grievant's termination was unlawful and unfair
- 2.Payment of underpayments of Kshs.22,486.00
- 3.Payment of pay in lieu of notice of Kshs.14,638.00
- 4.Compensation for unlawful termination of Kshs.175,656.00 (12 months' salary)
- 5.Payment for leave earned but not taken of Kshs.175,656.00
- 6.Total award of Kshs.388,436.00 in favour of the grievant
- 7.Costs of the suit to the Claimant with interest at court rates from the date of Judgment until settlement in full
- Jurisdiction invoked
- Article 162(2) of the Constitution read with Section 41, 43, 45, 47(5), 49 and 36 of the Employment Act, 2007 (employment and labour relations jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Building Construction Timber and Furniture Industries Employees Union v Imara Enterprises Limited [2021] KEELRC 2242 (KLR)", Case Analysis (2021). ELRC Cause, Nairobi (Memorandum of Claim dated and filed 29th September 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2242/eng@2021-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.