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ELRCPartially AllowedCause No 950 of 2017· [2023] KEELRC 1085 (KLR)

Oyoo v Vrajlal t/a Avicomp Decorators Limited (Cause 950 of 2017) [2023] KEELRC 1085 (KLR)

Employment and Labour Relations Court
28 April 2023
3,186 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan employer won on reasons for dismissal but lost because it skipped the mandatory hearing steps, paying the ex-employee over Kshs 153,000.

What this practically means

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Executive summary

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The claimant, employed as a painter from 2008 until March 2017, sued the respondent alleging unfair termination and claiming Kshs 966,327.50 comprising salary underpayments, notice pay, annual leave, gratuity, public holidays, rest days and compensatory damages. The respondent denied termination, contending that the claimant, though granted leave to attend a funeral upcountry, instead took three co-workers to Kericho for private work, absconded and walked away when asked to explain his absence. The court framed three issues: validity of the reason for termination, procedural fairness, and entitlement to reliefs. On the first issue, it found the claimant did not utilize the granted permission for its intended purpose, so the respondent had a justifiable cause to terminate. However, on due process, the court found no evidence of compliance with the mandatory requirements of Section 41 of the Employment Act (notice, explanation and hearing), rendering the termination procedurally unfair. On reliefs, the court drew an adverse inference against the employer for failing to produce employment records and awarded Kshs 78,117.00 in underpayments, Kshs 18,486.00 in one month's notice pay and four months' gross salary (Kshs 73,944.00) as compensatory damages, a total of Kshs 153,909.00 with interest and costs. Claims for house allowance, sixty days' notice pay, leave for 2008-2009, overtime, public holidays and gratuity were declined for lack of particularization, proof or statutory basis.

Key legal issues

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01

Whether there was a valid and fair reason for termination

Holding

The respondent had a justifiable cause to terminate as the claimant did not utilize the granted permission for the intended purpose, having allegedly gone to Kericho with three co-workers instead of attending the funeral upcountry

Reasoning

It was common ground that permission to attend a funeral was granted. The claimant filed no Reply to the Response and adduced no evidence he attended the funeral. His termination story was implausible since the employer had granted permission and even given bus fare, signifying good faith. The court therefore concluded he misused the permission, giving the employer reason to terminate.

p. 4
02

Whether due process was followed prior to termination

Holding

Although the respondent had a valid reason, it failed to comply with the mandatory procedure under Section 41, rendering the termination procedurally unfair

Reasoning

There was no evidence that the respondent issued the formal notice contemplated by Section 41, explained the grounds in a language the employee understands, or heard and considered representations. RW1's claim that he asked the claimant to explain in writing was unsupported by evidence. The Section 41 requirements are mandatory minimum standards of fair procedure.

p. 4
03

Entitlement to underpayment of salaries

Holding

Underpayment claim succeeded in part; adverse inference drawn against the employer for failing to produce employment records, and the claimant awarded Kshs 78,117.00

Reasoning

Under Sections 10(7) and 74(1) of the Employment Act the employer bears the burden of keeping records and proving compliance with minimum wage guidelines. Having led no evidence to discount the claim, an adverse inference was drawn. On review of the Legal Notices the claimant was found underpaid during certain periods, but the house allowance component was declined as inbuilt in the daily rate.

p. 5

Legal principles established

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  • An employer must prove the reasons for termination under Section 43(1) of the Employment Act, failing which the termination is unfair
  • Compliance with Section 41 of the Employment Act is mandatory and an employer cannot elect whether or not to comply
  • Where an employer fails to produce a written contract, the burden of proving or disproving an alleged term of employment falls on the employer under Section 10(7)
  • The burden of establishing hours or days served in excess of the legal maximum (overtime, rest days, public holidays) rests with the employee

Court orders

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  1. 1.Judgment entered in favour of the claimant against the respondent
  2. 2.One month's salary in lieu of notice, being the sum of Kshs 18,486.00
  3. 3.The sum of Kshs 78,117.00 being underpayments
  4. 4.Compensatory damages equivalent to four months' gross salary being Kshs 73,944.00
  5. 5.Total award of Kshs 153,909.00
  6. 6.Interest on the total award at court rates from the date of judgment until payment in full
  7. 7.The claimant shall have the costs of the suit

Authorities

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Legislation

  • Employment ActSection 43(1)
  • Employment ActSection 45(2)(a) and (b)
  • Employment ActSection 41
  • Employment ActSection 10(7)
  • Employment ActSection 74(1)
  • Employment ActSection 28(4)
  • Employment ActSection 42(1)
  • Employment Act, 2007Disciplinary action provisions
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (3)

  • Mary Chemweno Kiptui vs Kenya Pipeline Company Limited
    (2004)
  • Postal Corporation of Kenya v Andrew K. Tanui
    [2019] eKLR
  • Rogoli Ole Manadiegi v General Cargo Services Limited
    [2016] eKLR
Jurisdiction invoked
Original jurisdiction under the Employment Act, 2007 over a claim of unfair termination of employment

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, "Oyoo v Vrajlal t/a Avicomp Decorators Limited (Cause 950 of 2017) [2023] KEELRC 1085 (KLR)", Case Analysis (2023). Cause No 950 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1085/eng@2023-04-28

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