Juma v David Engineering Limited (Cause 108 of 2017) [2022] KEELRC 1315 (KLR)
The bottom line
#A Kenyan court ruled that blocking an employee from the workplace and issuing a dismissal letter counts as firing — and employers must prove reasons for termination.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant's employment was terminated by the Respondent or he absconded duty
The Respondent terminated the Claimant's employment. Refusing him re-entry to the workplace, referring him to the labour office and handing him a dismissal letter were overt acts signifying an intention to end the employment.
The Respondent told the Claimant his absence was 'beyond it' and referred him to the labour office, an unexplained 'throwing' of the employee to a third party. The Claimant was refused entry by guards. The dismissal letter, though said to be intended for a colleague, was not explained by the Respondent and signified its decision to terminate. Abscondment was never invoked as a ground of termination.
Whether the termination was substantively fair
The termination was substantively unfair because the Respondent, having denied terminating the Claimant, led no evidence to prove the reasons for termination as required by sections 43 and 45(2) of the Employment Act.
The Respondent maintained throughout that it never terminated the employment, so it did not discharge the statutory burden of proving the reasons for termination and their validity. Its alternative case of abscondment was never invoked as the ground of termination and therefore could not be considered. The termination thus failed the substantive fairness test under sections 43 and 45.
Whether the termination was procedurally fair
The termination was procedurally unfair: the Claimant was never subjected to any disciplinary proceedings nor accorded an opportunity to defend himself.
Section 41 of the Employment Act requires the employer to inform the employee of the charges, allow preparation and a hearing before dismissal. The Respondent's own witness confirmed no disciplinary process was undertaken because the Claimant was said to be unavailable, yet the Respondent had postal addresses for all employees and did not write to him, and could have raised disciplinary proceedings at the 8th June 2016 conciliation meeting.
What reliefs are available to the Claimant
The Claimant was awarded a declaration of unfair termination, one month's salary in lieu of notice (Kshs. 21,200) under sections 35 and 36, and compensation of 7 months' gross salary (Kshs. 148,400) under section 49(1)(c), with interest and costs; the outstanding salary claim was refused as already paid.
The contract was terminable by notice under section 35 and none was issued. Compensation under section 49(1)(c) was merited considering the Respondent's failure to pay two months' salary, its deviation from legal requirements, and the length of the Claimant's service. The unpaid salary had been paid into the Claimant's account during the pendency of the suit.
Legal principles established
#- Dismissal is ultimately caused by the employer; some overt action by the employer must be present to bring the employment into termination.
- An employer who alleges abscondment but never decides to terminate on that ground cannot rely on absconding as the anchor of the termination.
- The employer bears the burden under sections 43 and 45 of the Employment Act of proving valid and fair reasons for termination, failing which the termination is substantively unfair.
Court orders
#- 1.A declaration that the termination of the Claimant's employment was unfair
- 2.One month's salary in lieu of notice, Kshs. 21,200
- 3.Compensation pursuant to section 49 [1] [c] of the Employment Act, Kshs. 148,400
- 4.Interest at Court rates on the awarded sums, with effect the date of filing suit till full payment
- 5.Costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Article 162(2) as read with Article 165(5) of the Constitution; Employment Act, 2007 provisions applied: sections 35, 36, 41, 43, 45, 47(5) and 49)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Juma v David Engineering Limited (Cause 108 of 2017) [2022] KEELRC 1315 (KLR)", Case Analysis (2022). Not stated in the judgment (Statement of Claim dated 23rd January 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1315/eng@2022-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.