Joseph v Menengai Oil Refineries Ltd (Cause 225 of 2017) [2023] KEELRC 624 (KLR)
The bottom line
#A Kenyan court ruled that firing an employee for desertion without any evidence of trying to contact them or holding a hearing is unfair termination.
What this practically means
#Executive summary
#Key legal issues
#Unfair termination for desertion without due process
The termination was unfair and unjustified; the Respondent failed to prove a valid reason or follow fair procedure
RW1 admitted employing the Claimant at Kshs 1,500 per day and admitted terminating his services after he disappeared from work for one month. The Respondent produced no email, letter or text message attempting to reach the Claimant or requiring him to explain the alleged absence, and the Claimant was not subjected to any disciplinary hearing. Absent proof of efforts to contact the employee or a hearing, the termination failed the requirements of Sections 41 and 45 of the Employment Act.
Alleged discharge agreement at the labour office
The alleged discharge agreement was not proved
The Respondent's witness admitted there was a meeting at the labour office but had no evidence of it. The Claimant denied signing any discharge agreement or receiving the cheque. Since no discharge form was tendered in evidence, the Respondent failed to discharge the burden of proving that it had been released from liability for the employment relationship.
Remedies for unfair termination
Notice pay, one year's leave pay and eight months' compensation were awarded; overtime and leave beyond one year were refused
The court found for the Claimant in terms of Section 49 of the Employment Act, awarding one month's notice pay and compensation of eight months' salary, while limiting leave pay to one year and holding the remaining years not payable. The overtime claim was not awarded. The Respondent was ordered to issue a certificate of service and pay costs plus interest from the date of judgment.
Legal principles established
#- A termination of employment is unfair where the employer fails to prove a valid and fair reason and fair procedure under Section 45(2) of the Employment Act
- An employer alleging desertion must demonstrate efforts made to reach the employee and put them on notice that termination on the ground of desertion is being considered
- An employer asserting a discharge agreement must produce the discharge form in evidence
Court orders
#- 1.One month's salary in lieu of notice of Kshs 36,000/= as prayed
- 2.Leave pay for 1 year of Kshs 36,000/=; the rest of the years not payable
- 3.Compensation equivalent to 8 months' salary of Kshs 288,000/= (8 x 36,000/=)
- 4.Total award of Kshs 360,000/= less statutory deductions
- 5.Issuance of a certificate of service
- 6.Respondent to pay costs of the suit plus interest at court rates with effect from the date of judgment
- Jurisdiction invoked
- First-instance employment and labour relations claim under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph v Menengai Oil Refineries Ltd (Cause 225 of 2017) [2023] KEELRC 624 (KLR)", Case Analysis (2023). ELRC Claim dated May 10, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/624/eng@2023-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.