Ayara v Makrias & another as Trustees of Shalom Christian Missions & 2 others (Cause E036 of 2021) [2023] KEELRC 297 (KLR)
The bottom line
#A Kenyan court ruled that locking out an employee who had already resigned, without reasons or a hearing, was unfair termination worth over Kshs 497,000.
What this practically means
#Executive summary
#Key legal issues
#Existence of an employment relationship without a written contract
The Claimant was an employee of the 2nd Respondent, operated by the 1st and 3rd Respondents.
Despite the absence of a written contract, the Court relied on email correspondence dating back to 2015 regarding recruitment, a payroll bearing the Claimant's name, and a letter of resignation addressed to the 1st Respondent. Section 8 of the Employment Act recognises oral contracts, so the lack of a written contract did not negate the relationship. The Respondents' assertion that the 2nd Respondent was a non-legal entity did not displace the finding of employment.
Whether termination was unfair
Locking out the Claimant before his resignation notice expired, without hearing or reasons, was unfair termination.
The Claimant had given two months' notice of resignation effective end of December 2020; he remained an employee to whom Sections 41, 43, 45 and 47(5) applied. The Respondents neither gave reasons nor accorded him a hearing. Email exchanges showed he was attending training, so allegations of abandonment were unfounded. Notice of resignation is not a reason for termination.
Quantum of compensation and notice pay
Five months' salary as compensation and one month's pay in lieu of notice awarded.
In the absence of a contract, the statutory one month's notice applies and the Claimant was not given notice. Compensation under Sections 49 and 50 considered the humiliation suffered and expenses such as hotel residence, tempered by the fact that the Claimant had already tendered resignation and had no expectation of continued employment.
Counterclaim for accounts and records
Counterclaim dismissed for want of evidence.
None of the 2nd Respondent's witnesses adduced evidence in support of the counterclaim, and the allegations were afterthoughts never raised before the resignation. A party alleging must prove; the Respondents bore the burden and failed to discharge it.
Legal principles established
#- A contract of service may be oral or written; absence of a written contract does not negate an employment relationship.
- Fairness of termination requires both substantive justification and procedural fairness.
- Notice of resignation is not a valid reason for an employer to terminate employment before the resignation takes effect.
Court orders
#- 1.A declaration that the Claimant's termination is unfair
- 2.Salary for the month of October, 2020 at Kshs 71,000/-
- 3.One Month's Salary in lieu of termination notice at Kshs 71,000/-
- 4.5 Months' Salary in compensation for unfair termination at Kshs 355,000/-
- 5.Costs of the suit and interest until payment in full
- 6.Payments shall be subject to Statutory deductions
- 7.Judgment entered against the 1st, 2nd and 3rd Respondents jointly and severally
- 8.The 2nd Respondent's counterclaim dismissed
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ayara v Makrias & another as Trustees of Shalom Christian Missions & 2 others (Cause E036 of 2021) [2023] KEELRC 297 (KLR)", Case Analysis (2023). Cause No E036 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/297/eng@2023-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.