Ndwota v Waki Clearing and Forwarding Agents Limited (Cause 12 of 2016) [2023] KEELRC 2085 (KLR)
The bottom line
#A Kenyan employer who cannot explain consistently why it fired a worker, and who skipped a hearing, must pay for unfair dismissal.
What this practically means
#Executive summary
#Key legal issues
#Manner of separation in employment
The Court accepted the Claimant's account that he was verbally dismissed, as the Respondent's pleadings and testimony were contradictory on whether the separation was by desertion or incapacity
The Respondent pleaded termination on grounds of incapacity, but its witness suggested the Claimant abandoned duty. The Court found the Respondent failed to state clearly how the separation occurred, portraying an employer who did not know the truth of the manner of separation or was deliberately concealing it. The competing accounts were irreconcilable, so the Court preferred the Claimant's version of verbal dismissal.
Procedural fairness of the dismissal
The dismissal was procedurally unfair as the Respondent failed to prove compliance with Section 41 of the Employment Act
Section 41 requires the employer to explain the grounds for contemplated termination, allow representations and consider them. The Respondent's evidence contained nothing geared towards discharging this burden, and its submissions did not address procedural fairness at all. Even assuming desertion or incapacity, the employer still bore the burden of demonstrating that the statutory procedure was followed.
Substantive fairness of the dismissal
The dismissal was substantively unfair; the Respondent failed to prove a valid and fair reason under Sections 43 and 45(2)
The Respondent did not identify the exact reason for the discharge, alternating between desertion and incapacity. Desertion was not sufficiently pleaded and appeared an afterthought, and no evidence of investigation into incapacity or expert medical report was produced, following the Supreme Court's guidance in Gichuru v Package Insurance Brokers Ltd.
Jurisdiction over WIBA claims
The Court lacks original jurisdiction to award unpaid WIBA compensation balances or medical expenses; its jurisdiction under WIBA is appellate only
The claim for the unpaid balance of the Director of Occupational Health and Safety's assessment fell within WIBA. The Court held the Claimant should have used the enforcement mechanisms under the Act rather than approaching the ELRC in the first instance. Similarly, the refund of medical expenses could only be originally adjudicated under WIBA.
Reliefs payable
Claimant awarded one month's salary in lieu of notice, 7 months' gross salary as compensation, unpaid January and February 2014 salary, and a certificate of service
The Respondent admitted the unpaid salary claim. The employment being terminable by 28 days' notice under Section 35, dismissal without notice attracted salary in lieu. Under Section 49(1)(c), the Court considered the unfairness, the Claimant's non-contribution, and length of service in fixing compensation at 7 months' gross salary. The certificate of service had to issue under Section 51.
Legal principles established
#- It is not enough for an employer to assert desertion; it must demonstrate efforts made to contact the employee, inquire into the absence, and notify the employee of contemplated action
- To justify dismissal on grounds of incapacity, the employer must investigate the extent of the incapacity and all possible alternatives short of dismissal, supported by expert evidence
Court orders
#- 1.A declaration that the dismissal of the Claimant from employment was both procedurally and substantively unfair
- 2.Salary in lieu of notice - KShs. 19,500
- 3.Compensation for unfair termination - KShs. 136,500
- 4.Unpaid salary for January and February 2014 - KShs. 39,000
- 5.Certificate of service to issue within 30 days of the judgment
- 6.Interest at Court rates on the notice pay and unpaid salary from the date of filing the suit, and on the compensation from the date of judgment, till full payment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 35, 41, 43, 45(2), 49, 51); the Court expressly declined original jurisdiction over claims arising under the Work Injury Benefits Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndwota v Waki Clearing and Forwarding Agents Limited (Cause 12 of 2016) [2023] KEELRC 2085 (KLR)", Case Analysis (2023). ELRC Cause (Claim dated 1st December 2015, amended 25th July 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2085/eng@2023-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.