Onono v Chemartin Tea Company Limited (Cause E013 of 2022) [2023] KEELRC 1053 (KLR)
The bottom line
#A Kenyan employer couldn't prove an employee absconded, so its firing and pay cut were ruled unfair, costing it over Kshs 1.6 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was unfairly terminated
The Claimant was terminated unfairly and without procedural fairness within the meaning of Section 45(2) of the Employment Act; the defence of absconding failed because the Respondent adduced no evidence of efforts to contact him or of any warning letter
The Respondent asserted the Claimant absconded after refusing to resign on the Respondent's terms. Following the decision in Simon Mbithi Mbane v Inter Security Services Ltd, an employer alleging abscondment must show efforts to contact the employee. No such efforts were demonstrated, and no warning letter or documentation was tabled. The Court therefore preferred the Claimant's account that he was terminated after refusing to resign, and found the process lacked procedural fairness.
Whether the reduction of the Claimant's salary was lawful
The variation and reduction of the Claimant's salary was without any basis
RW1 claimed the Claimant increased his own salary to Kshs 120,000 and that the board later reduced it. However, RW1 conceded that the Claimant was not invited to the meeting where his salary was reduced nor to explain the alleged discrepancy. The Court held the Respondent should have conducted a thorough investigation into what it alleged was gross misconduct, and its casual handling of the matter rendered the salary reduction baseless.
Whether the Respondent's counterclaim was proved
The counterclaim, founded on the allegation that the Claimant left employment without notice, was dismissed
The counterclaim rested on the same allegation of abscondment without notice which the Court had already rejected on the evidence. Since the Respondent failed to prove that the Claimant absconded, the foundation of the counterclaim collapsed and judgment was not entered for the one month's salary in lieu of notice sought by the Respondent.
Legal principles established
#- An allegation that an employee has absconded duties calls upon the employer to demonstrate that efforts were made to contact the employee without success
Court orders
#- 1.Payment of one month's salary in lieu of notice of Kshs 120,000
- 2.Payment of withheld salaries of Kshs 830,000
- 3.Six months' salary as compensation for unfair termination of Kshs 720,000
- 4.Costs of the suit to the Claimant
- 5.Claim for leave pay disallowed
- 6.Respondent's counterclaim dismissed
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; court not stated expressly in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onono v Chemartin Tea Company Limited (Cause E013 of 2022) [2023] KEELRC 1053 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1053/eng@2023-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.