Kashero v Five Forty Aviation Limited (Cause 2097 of 2017) [2023] KEELRC 2368 (KLR)
The bottom line
#Kenya's ELRC ruled a pilot's dismissal had valid grounds but was procedurally unfair because the airline skipped the mandatory disciplinary hearing.
What this practically means
#Executive summary
#Key legal issues
#Effect of the Respondent's failure to adduce evidence
The Claimant still bears the burden of proving his case on a balance of probabilities, but where a defendant offers no evidence the plaintiff's uncontroverted evidence is believed; the Claimant's evidence was overwhelming on employment and the Respondent's allegations remained unproven
The court noted the Respondent closed its case without calling witnesses and never filed submissions despite adjournments and extended time. Applying Nicholus Kipkemoi Korir and Edward Muriga, it held the Claimant must still prove his case, but the Respondent's pleadings amounted to mere allegations since pleadings are not evidence. The admissions in the Respondent's pleadings established employment and its assertions of swindling and intoxication required proof the Respondent never tendered.
Whether termination was substantively unfair
No - the Respondent genuinely believed the Claimant had consumed alcohol while on sick-off and medication, satisfying Section 43
Dr. Gatabaki's independent pre-arranged examination detected 7 mg/dl of alcohol in the Claimant's blood; the doctor testified none would have been detectable without consumption within 24 hours. The Claimant, on sick leave and medication, neither denied nor explained the alcohol and failed to produce any doctor's authorisation despite requests in two show-cause letters. Guided by Section 43(2), KRA v Gitahi and Galgalo Jarso Jilo, the court applied the range of reasonable response test and found a valid, fair reason.
Whether termination was procedurally unfair
Yes - no disciplinary hearing was convened and no notice of termination was given
Section 41 requires notification of reasons in a language the employee understands, in the presence of a fellow employee or representative, and hearing of representations before termination. Although two show-cause notices were issued and answered, no invitation to a disciplinary hearing, minutes of proceedings, or notice of termination were availed. The court held Section 41's requirements mandatory and found the Claimant proved procedural unfairness on a balance of probabilities.
Entitlement to reliefs
Declaration granted; notice pay awarded; August salary and 42 leave days awarded; 3 months' compensation awarded; reinstatement and training fee refund refused
Notice pay was sustained because the Respondent tendered no evidence of notice or payment in lieu. Salary for days worked in August 2017 and 42 outstanding leave days (per the Respondent's own document) were awarded. Reinstatement was time-barred under Section 12(3)(vii) ELRC Act. The USD25,000 training fee refund failed for want of any contractual or statutory basis. Considering length of service (~3 years), clean disciplinary record and the Claimant's substantial contribution to the termination, 3 months' salary was fair compensation under Section 49(1)(c).
Legal principles established
#- In an undefended claim, the claimant must still prove the case on a balance of probabilities; allegations on oath or pleadings unsupported by evidence do not suffice
- Pleadings are not evidence unless admitted by the other party
- Where a defendant does not adduce evidence, the plaintiff's evidence is to be believed
- The employer need only prove reasons it genuinely believed to exist, on a balance of probability
- Non-compliance with the mandatory procedural requirements of Section 41 of the Employment Act renders a termination unfair
Court orders
#- 1.Declaration that termination of the Claimant's employment was unfair
- 2.One month's salary in lieu of notice of Kshs.457,378.00
- 3.Payment for 42 accrued leave days
- 4.Equivalent of 3 months' salary as compensation under Section 49(1)(c)
- 5.Costs of the suit to the Claimant
- 6.Interest at court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court Act, 2011 and Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kashero v Five Forty Aviation Limited (Cause 2097 of 2017) [2023] KEELRC 2368 (KLR)", Case Analysis (2023). Cause No 2097 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2368/eng@2023-10-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.