Ndome v Welfast (K) Limited (Cause 359 of 2017) [2023] KEELRC 373 (KLR)
The bottom line
#A Kenyan court ruled an employee's dismissal unfair because the employer couldn't prove a fixed-term contract and skipped fair disciplinary procedure, awarding notice pay and modest compensation.
What this practically means
#Executive summary
#Key legal issues
#Date and nature of the claimant's employment
The claimant was employed on March 11, 2015 under a written contract of service, not January 11, 2005, and the contract was not shown to be a fixed term contract ending December 31, 2015
The claimant produced no payslip, voucher, employment card or bank statement to prove employment from 2005, while the respondent tendered a signed contract dated March 11, 2015 which the claimant did not controvert. The contract on record was silent on duration; the handwritten '2015' was ambiguous and, applying contra proferentem and section 10(7) of the Employment Act, the burden lay on the employer to prove the fixed term, which it failed to discharge.
Whether termination of employment was unfair
The termination was unfair within the meaning of section 45 of the Employment Act
The employment relationship was subsisting in 2016 since no agreement fixed the contract's end at December 2015. The respondent adduced no evidence to controvert the claimant's testimony that he was told on January 4, 2016 to go home and would be recalled. Although the respondent may have had a reason, no disciplinary meeting was held and the mandatory procedure under the Employment Act was not complied with.
Whether the claimant was entitled to one month's salary in lieu of notice
Entitled, since the respondent did not comply with sections 35 or 36 of the Employment Act as regards notice
The evidence showed no notice was issued and no pay in lieu of notice was given for the subsisting employment relationship; the claimant therefore deserved one month's salary of Kshs 19,205/=.
Quantum of compensation for unfair termination
Two months' salary (Kshs 38,410/=) awarded instead of the 12 months sought
Under section 49(1)(c) the court considered the roughly 10-month duration of employment, the claimant's signed May 15, 2015 letter implicating him in chewing tobacco during office hours, his wish to continue working as evidenced by the February 2, 2016 follow-up, and the unexplained Kshs 8,000/= paid in December 2015.
Legal principles established
#- For a termination to pass the fairness test it must be both substantively justified and procedurally fair
- Where an employer fails to produce a written contract with prescribed particulars, the burden of proving or disproving an alleged term of employment rests on the employer
- Ambiguous clauses in a written contract are construed restrictively against the party relying on the clause (contra proferentem)
- A signature on a document is binding absent evidence that it was procured by threats of violence or actual violence
Court orders
#- 1.Declaration that termination of the claimant's employment by the respondent was unfair and unlawful
- 2.One month's salary in lieu of notice, Kshs 19,205/=
- 3.Equivalent of two months' salary compensation (Kshs 38,410/=), total award Kshs 57,615/=
- 4.Costs of the suit to the claimant
- 5.Interest at court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance claim for unfair termination and terminal dues)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndome v Welfast (K) Limited (Cause 359 of 2017) [2023] KEELRC 373 (KLR)", Case Analysis (2023). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/373/eng@2023-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.