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ELRCPartially AllowedCause No 188 of 2017· [2022] KEELRC 1533 (KLR)

Kiara v World Poles Limited (Cause 188 of 2017) [2022] KEELRC 1533 (KLR)

Employment and Labour Relations Court
8 June 2022
2,141 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer lost an unfair termination case because it couldn't prove it tried to contact a worker it accused of deserting duty.

What this practically means

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Executive summary

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The claimant sued the respondent for unfair and unprocedural termination of his employment as a cleaner, alleging he was dismissed in February 2016 for joining a trade union and recruiting colleagues, contrary to section 41(1) of the Employment Act. The respondent denied this, asserting he was employed in 2015 at Ksh. 500 per day, was dismissed for gross misconduct arising from a physical fight with a colleague, Irene Sang, and was ultimately summarily dismissed for deserting duty after failing to return from a two-week suspension. The court found it common ground that a fight occurred, which was a justifiable ground for summary dismissal, but the respondent itself treated the fight as amicably resolved and instead relied on desertion. The court held that desertion is a valid ground for summary dismissal only where the employer proves reasonable steps to contact the employee; the two termination letters bore no address and no evidence of transmission to the claimant was led. The termination was therefore unfair. The union-victimisation allegation was unsupported, the union's letter of February 18, 2016 not raising union membership. Claims for severance pay, overtime, weekend and public holiday work, and underpayment all failed for want of proof; the court stressed that broad allegations without reasonable details are insufficient even though records are the employer's duty. The court awarded one month's salary in lieu of notice (Ksh. 30,000), six months' wages as compensation for unfair termination (Ksh. 180,000), costs of the suit, and ordered the awards subject to taxes and statutory deductions.

Key legal issues

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01

Whether termination on grounds of desertion was fair

Holding

Although desertion could have justified dismissal, the respondent failed to show reasonable steps to contact the claimant or to bring the letters to his attention; termination unfair

Reasoning

The letters of February 24, 2016 and March 20, 2016 did not bear the claimant's address and no evidence was led on how they were transmitted to him. Desertion is a valid ground for summary dismissal, but the employer must show reasonable steps to contact the employee and call on him to show cause before dismissing on that ground. This was not done, so the termination was unfair.

p. 4
02

Allocation of burden of proof in unfair termination claims

Holding

Employee bears burden of proving unfair termination; employer bears burden of proving valid reasons, and the burdens are exclusive

Reasoning

Under section 47(5) of the Employment Act, the burdens are separate and exclusive. The respondent bore the burden of justifying the termination, which it failed to discharge on the desertion ground. Conversely, the claimant failed to prove his union-victimisation allegation since the union's letter of February 18, 2016 did not raise union membership and nothing was shown of the union's intervention.

p. 4
03

Proof of ancillary claims (overtime, severance, underpayment)

Holding

Claims failed for want of proof; broad allegations without details do not suffice even though records are the employer's duty

Reasoning

Although the duty to keep employment records lies with the employer, an employee must reasonably set out the background of such claims to enable the employer check and produce records. Severance pay is unavailable absent redundancy. Underpayment required proof of the claimant's skills and the applicable Wage Order, neither of which was tabled.

p. 4

Legal principles established

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  • In unfair termination claims the burden of proving unfairness lies on the employee and the burden of proving reasons for termination lies on the employer; the burdens are exclusive and separate
  • Before an employer may rely on desertion of duty as a ground for summary dismissal, evidence must show reasonable steps were taken to contact the employee

Court orders

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  1. 1.One month's salary in lieu of notice at Ksh. 30,000
  2. 2.Six months wages as compensation for unfair termination at Ksh. 180,000
  3. 3.Costs of the suit to the claimant
  4. 4.Items (a) and (b) shall be subject to taxes and statutory deduction

Authorities

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Legislation

  • Employment Actsection 41(1)
  • Employment Actsection 47(5)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (claim for unfair termination); specific article not stated in the judgment

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, "Kiara v World Poles Limited (Cause 188 of 2017) [2022] KEELRC 1533 (KLR)", Case Analysis (2022). Cause No 188 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1533/eng@2022-06-08

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