Odhiambo v Nanchang Engineering Company Ltd (Employment and Labour Relations Cause 1298 of 2016) [2023] KEELRC 2062 (KLR)
The bottom line
#A Kenyan employer who claims a worker abandoned the job must prove they tried to contact them and held a fair hearing, or the dismissal is unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant deserted duty or was constructively/unfairly dismissed
The Respondent failed to prove desertion; the Claimant's termination was unfair
The court applied authorities holding that an employer alleging desertion must show efforts to reach the employee and put them on notice. The Respondent made no attempts to contact the Claimant after 17 January 2015 and its witness conceded it could not force an employee back. The Respondent also failed to prove the Claimant was absent on the material date. A case for abscondment was therefore not proved.
Whether the termination satisfied the substantive and procedural fairness requirements of sections 41 and 45(2) of the Employment Act
The Respondent failed to prove a valid reason and compliance with fair procedure under sections 41 and 45(2)
Section 45(2) places the burden on the employer to prove a valid and fair reason and fair procedure. Section 41 mandatorily requires explanation of reasons to the employee in the presence of a fellow employee or representative and consideration of representations. The Respondent never communicated any reasons to the Claimant nor heard him before the decision, failing both tests.
What remedies flow from the unfair termination
The Claimant received one month's notice pay and six months' compensation under section 49(1)(c), but failed to prove leave, overtime, public holidays and service pay claims
Having found unfair termination, the court awarded notice pay and six months' gross salary as compensatory damages under section 49(1)(c). The remaining heads failed for want of proof: the Claimant produced no NSSF documents to support service pay and adduced no evidence of unpaid leave, overtime or public holiday work.
Legal principles established
#- An employer alleging desertion must demonstrate efforts made to reach out to the employee and put them on notice that termination on that ground is under consideration
- An employer cannot remain a passive observer where an employee commits misconduct; it must take action to bring the matter to a close
- For a termination to be fair it must pass both the substantive test and the procedural test under sections 41 and 45 of the Employment Act
Court orders
#- 1.Judgment entered against the Respondent
- 2.One month salary in lieu of notice awarded at Kshs 8,960/-
- 3.Compensation for unfair termination of six months' salary at Kshs 8,950 x 6 = Kshs 53,700/-
- 4.Total award of Kshs 62,650/- to the Claimant
- 5.Costs of the suit awarded to the Claimant
- 6.Interest at court rates from date of judgment until full payment
- Jurisdiction invoked
- Employment Act (Sections 41, 45, 49(1)(c)); original employment and labour relations jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odhiambo v Nanchang Engineering Company Ltd (Employment and Labour Relations Cause 1298 of 2016) [2023] KEELRC 2062 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2062/eng@2023-08-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.