Kiara v World Poles Limited (Cause 188 of 2017) [2022] KEELRC 1533 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether termination on grounds of desertion was fair
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
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.
Allocation of burden of proof in unfair termination claims
Employee bears burden of proving unfair termination; employer bears burden of proving valid reasons, and the burdens are exclusive
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.
Proof of ancillary claims (overtime, severance, underpayment)
Claims failed for want of proof; broad allegations without details do not suffice even though records are the employer's duty
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.
Legal principles established
#- 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
#- 1.One month's salary in lieu of notice at Ksh. 30,000
- 2.Six months wages as compensation for unfair termination at Ksh. 180,000
- 3.Costs of the suit to the claimant
- 4.Items (a) and (b) shall be subject to taxes and statutory deduction
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.