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ELRCPartially AllowedCause No 147 of 2018· [2023] KEELRC 480 (KLR)

John v Yalfa Cargo Handling Limited (Cause 147 of 2018) [2023] KEELRC 480 (KLR)

Employment and Labour Relations Court
23 February 2023
ANAgnes Kitiku Nzei
2,910 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Mombasa court ruled a cleaner's verbal dismissal without a hearing was unfair, awarding him Kshs 115,800 because the employer kept no records.

What this practically means

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Executive summary

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The Claimant, employed as a cleaner, sued the Respondent claiming he was insulted and chased out of the workplace by his supervisor on February 6, 2018, and that his employment was thereby verbally and unfairly terminated without notice, hearing or payment of dues. He sought one month's salary in lieu of notice, underpayment, compensation for unfair termination, unpaid leave for three years, a declaration of unfair dismissal, costs and interest. The Respondent denied terminating the employment, asserting the Claimant deserted duty, and counter-claimed Kshs 9,000 being one month's salary in lieu of notice. The court framed three issues: unfairness of termination, the Claimant's entitlement to reliefs, and the Respondent's entitlement on the counter-claim. Neither party produced a written contract; invoking Section 10(6) and (7) of the Employment Act, the court held the Respondent bore the burden of disproving the Claimant's pleaded date of employment and adopted May 7, 2015, giving over two years and eight months of continuous service. The court found the Respondent neither complied with the mandatory Section 41 procedure nor acted with justice and equity under Section 45(4)(b), and declared the termination unfair, following Kenfreight (EA) Limited v Benson K Nguti. Taking monthly earnings as Kshs 9,000 (admitted via the counter-claim), the court awarded ten months' salary (Kshs 90,000) as compensation, Kshs 9,000 in lieu of notice, and Kshs 16,800 for unpaid leave, the Respondent having no leave records under Section 74(f). The underpayment claim failed for want of evidence, and the counter-claim was dismissed, desertion not being proved. Judgment of Kshs 115,800 was entered for the Claimant, subject to statutory deductions under Section 49(2), with costs of both suit and counter-claim and interest from the date of judgment. Delivered at Mombasa on February 23, 2023, via Microsoft Teams owing to COVID-19 restrictions.

Key legal issues

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01

Whether the Claimant's termination was procedurally fair under Sections 41 and 45 of the Employment Act

Holding

Termination was unfair: no notice to show cause was issued, the Claimant was not heard, and the Respondent did not act in accordance with justice and equity

Reasoning

The court found as common ground that the supervisor chased the Claimant out of his workplace on February 6, 2018. The Personnel Manager was notified the same day but neither restored the Claimant nor issued a show-cause notice. The Respondent did not demonstrate compliance with the mandatory Section 41 procedure (explanation and hearing of representations) nor adherence to justice and equity under Section 45(4)(b). Verbal dismissal without hearing renders termination unfair.

p. 4
02

Burden of proof as to the employment relationship and its terms where no written contract is produced

Holding

The Respondent failed to discharge the statutory burden under Section 10(7); the court therefore took the date of employment as pleaded by the Claimant (May 7, 2015)

Reasoning

Neither party produced a contract of employment. Section 10(7) places the burden of proving or disproving alleged terms on the employer where no written contract is produced. The Respondent, which alleged the Claimant was only employed permanently in 2017 after casual work, produced no records. Consequently, the Claimant's pleaded date of employment was adopted, giving him over 2 years and 8 months of continuous service and standing under Section 45(3).

p. 4
03

Entitlement to reliefs: notice pay, compensation, unpaid leave and the counter-claim

Holding

Ten months' salary (Kshs 90,000) compensation, one month notice pay (Kshs 9,000) and unpaid leave (Kshs 16,800) awarded; underpayment claim and counter-claim dismissed

Reasoning

Monthly earnings were taken as Kshs 9,000, admitted via the counter-claim. The underpayment claim failed for want of evidence. On leave, the Respondent produced no leave records despite the Section 74(f) duty, so the Claimant was awarded leave for 2 completed years (21 days each) plus 14 days for 8 months of the uncompleted third year. The counter-claim failed because the Respondent did not prove desertion.

p. 6

Legal principles established

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  • Where an employer fails to produce a written contract or written particulars of employment, the burden of proving or disproving an alleged term of employment is on the employer
  • An employee continuously employed for not less than thirteen months immediately before termination has the right to complain of unfair termination
  • An employee facing disciplinary action must be given adequate opportunity to respond to charges before action is taken; if the employee is not heard, the termination is ipso facto unfair

Court orders

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  1. 1.Declaration that the termination of the Claimant's employment was unfair
  2. 2.Award of Kshs 90,000 being compensation for unfair termination of employment (10 months' salary at Kshs 9,000)
  3. 3.Award of Kshs 9,000 being one month salary in lieu of notice
  4. 4.Award of Kshs 16,800 being payment for unpaid leave days
  5. 5.Total judgment of Kshs 115,800 entered for the Claimant against the Respondent
  6. 6.The awarded sum to be subject to statutory deductions pursuant to Section 49(2) of the Employment Act
  7. 7.Claimant awarded costs of both the suit and the counter-claim
  8. 8.Claimant awarded interest at Court rates, to be calculated from the date of the judgment
  9. 9.Respondent's counter-claim dismissed with costs

Authorities

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Legislation

  • Employment Actsection 35(1)(c)
  • Employment Actsection 41(1) and (2)
  • Employment Actsections 43, 44(3) and (4)
  • Employment Actsection 45(3) and 45(4)(b)
  • Employment Actsection 49(2)
  • Employment Actsection 10(6) and 10(7)
  • Employment Actsection 28(1)
  • Employment Actsection 74(f)

Cases cited (5)

  • Gilbert Isandula Shikalo v Bernard Njoroge t/a Creative Metro Services
    [2020] eKLR
  • Florence Atieno Ominde v Techno Service Limited
    [2021] eKLR
  • Kenya Union Of Domestic, Hotels, Educational Institutions & Hospital Workers v Mombasa Sports Club
    [2014] eKLR Cause No 440 Of 2013
  • Donald Odeke v Fidelity Security Ltd
    [2012] eKLR Cause No 1998 of 2011
  • Kenfreight [ea] Limited v Benson K Nguti
    [2016] eKLR
Jurisdiction invoked
Sections 35, 41, 43, 45 and 49 of the Employment Act (claim pleaded as arising under the Employment Act)

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, "John v Yalfa Cargo Handling Limited (Cause 147 of 2018) [2023] KEELRC 480 (KLR)", Case Analysis (2023). Cause No 147 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/480/eng@2023-02-23

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