Oyoo v Vrajlal t/a Avicomp Decorators Limited (Cause 950 of 2017) [2023] KEELRC 1085 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether there was a valid and fair reason for termination
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
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.
Whether due process was followed prior to termination
Although the respondent had a valid reason, it failed to comply with the mandatory procedure under Section 41, rendering the termination procedurally unfair
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.
Entitlement to underpayment of salaries
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
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.
Legal principles established
#- 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
#- 1.Judgment entered in favour of the claimant against the respondent
- 2.One month's salary in lieu of notice, being the sum of Kshs 18,486.00
- 3.The sum of Kshs 78,117.00 being underpayments
- 4.Compensatory damages equivalent to four months' gross salary being Kshs 73,944.00
- 5.Total award of Kshs 153,909.00
- 6.Interest on the total award at court rates from the date of judgment until payment in full
- 7.The claimant shall have the costs of the suit
- Jurisdiction invoked
- Original jurisdiction under the Employment Act, 2007 over a claim of unfair termination of employment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.