Parmar v African Expess Airways (Cause 1434 of 2017) [2023] KEELRC 1028 (KLR)
The bottom line
#Kenya's Employment Court ruled a pilot's dismissal unfair because the airline offered no evidence, awarding him pay, notice, leave and compensation with costs.
What this practically means
#Executive summary
#Key legal issues
#Nature of employment relationship
Claimant was employed on a permanent and full-time basis from September 2014
The employer was statutorily obliged under section 9 to reduce the contract to writing but did not, and gave no justification. Letters by the Respondent's Director of Flight Operations to I&M Bank and the High Commission of India confirmed permanent full-time employment. This unchallenged evidence, coupled with the employer's failure to discharge the section 10(7) legal burden, persuaded the court.
Procedural fairness of termination
Termination was procedurally unfair
Section 41 requires notification of grounds, a hearing, right of accompaniment and consideration of representations. The Claimant testified he was never granted a hearing and the evidence was unrebutted, the Respondent having closed its case without calling a witness. The employer's statutory duty to prove fair procedure was thus not discharged.
Substantive fairness of termination
Termination lacked substantive justification
Sections 43 and 45 place on the employer the burden of proving the reasons for termination and their validity. With no evidence adduced by the Respondent, those burdens went undischarged. The Claimant had discharged his burden under section 47(5) of demonstrating the termination lacked fairness.
Quantum of reliefs
Partial award: prorated June salary, notice pay, safety officer allowance, leave days and six months' compensation; house allowance, gratuity, medical cover and constitutional declaration refused
Only proved reliefs are granted. June salary was prorated to the 13th of the month. Untested evidence on safety officer duties and 34 unused leave days was accepted. Medical cover, house allowance and gratuity failed for want of proof; the constitutional declaration failed for want of particularization. Compensation under section 49(1)(c) was discretionary and fixed at six months' gross salary.
Legal principles established
#- Where an employer fails to produce a written contract, the burden of proving or disproving an alleged term of employment lies on the employer
- Termination must satisfy both procedural and substantive fairness; absence of either renders it unfair
- Section 41 hearing procedure is mandatory before termination
- A person alleging constitutional violation must plead with particularity the rights infringed and the manner of infringement
Court orders
#- 1.Declaration that the termination of the Claimant's employment was procedurally and substantively unfair
- 2.USD 1,950 for salary for the days worked in June 2016
- 3.USD 4,500 being one month's salary in lieu of notice
- 4.USD 5,100 compensation for unused leave days
- 5.USD 2,700 compensation pursuant to section 49(1)(c) of the Employment Act
- 6.Costs of the suit to the Claimant
- 7.Interest on the sums awarded at court rates from the date of judgment till full payment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 41, 43, 45, 47(5), 49(1)(c), 35, 36); Article 162(2) jurisdiction implied
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Parmar v African Expess Airways (Cause 1434 of 2017) [2023] KEELRC 1028 (KLR)", Case Analysis (2023). Cause No 1434 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1028/eng@2023-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.