Wachoro v Ellams Products Limited (Cause 1470 of 2017) [2023] KEELRC 1180 (KLR)
The bottom line
#A Kenyan court ruled a dismissal over desertion was justified in substance but unfair in procedure because the employee got hearing letters too late.
What this practically means
#Executive summary
#Key legal issues
#Nature of the separation in employment
The separation occurred by summary dismissal by the Respondent, established by the Respondent's admission notwithstanding the Claimant's failure to discharge his burden
The Claimant's pleadings and testimony contradicted each other on the dates and manner of separation, and pleaded suspension rather than dismissal. Under section 47(5) of the Employment Act he bore the burden of establishing termination. However, the Respondent admitted that it summarily dismissed the Claimant, which discharged the Claimant's burden by admission.
Substantive fairness of the summary dismissal
The dismissal was substantively fair as the Claimant deserted duty, a gross misconduct under section 44
The Respondent's evidence that the Claimant absented himself without authority from 25th June 2016 was consistent and unchallenged. Desertion is a voluntary act and the court inferred voluntary relinquishment, justifying the Respondent's conclusion and the penalty of summary dismissal.
Procedural fairness of the dismissal
The dismissal was procedurally unfair as the Respondent failed to adhere to section 41 of the Employment Act
The Respondent's witness contradicted himself on whether the show cause letter was issued through the Labour Officer or posted to the Claimant's postal address, and failed to prove when the letters were dispatched. The court accepted that the Claimant received both letters on 27th October 2016, long after the dates set for show cause and hearing had passed, denying him the mandatory notification, hearing and consideration components.
Legal principles established
#- In dismissal disputes the employee bears the initial burden of establishing that his employment was terminated, whereafter the burden shifts to the employer to prove valid and fair reasons
- Desertion must be a voluntary act of the employee and the employee's intention must be considered
- The section 41 procedure for termination is mandatory and deviation renders termination unfair
- An employer must prove that show cause and hearing notices were sent in good time; late delivery defeats procedural fairness
Court orders
#- 1.A declaration that the dismissal of the Claimant from employment was procedurally unfair
- 2.Compensation pursuant to section 49(1)(c) of the Employment Act of four months' gross salary, KShs. 61,472
- 3.A direction that the Respondent issues a certificate of service within 30 days of the judgment
- 4.Costs of the suit to the Claimant
- 5.Interest at court rates on the awarded sum from the date of judgment until full payment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wachoro v Ellams Products Limited (Cause 1470 of 2017) [2023] KEELRC 1180 (KLR)", Case Analysis (2023). ELRC Cause (Nyeri), Memorandum of Claim dated 27th July 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1180/eng@2023-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.