Mutie v Maxam Limited (Employment and Labour Relations Cause 273 of 2018) [2024] KEELRC 673 (KLR)

The claimant was absent on the day of the alleged theft, was suspended on his return, was never issued a notice to show cause nor summoned to a disciplinary hearing, and the respondent produced no investigation report. RW1 conceded the claimant exonerated himself since he was not at work. Termination followed without notice or payment in lieu, violating the Employment Act's procedural and substantive fairness requirements.

The claimant gave credible unrebuted evidence that he never took annual leave. Section 10(7) places the burden on the employer where written particulars are not produced, and RW1 adduced no rebuttal. However, the written contracts produced only covered part of the service period, so the court limited leave pay to the period from 1/11/2015 to termination.

The claimant served faithfully from 1/9/2014 to 29/3/2017 without a break, had expectation of continued employment, lost income without notice, contributed nothing to the termination, and received no terminal benefits. Applying section 49(1)(c) and (4) and the approach in Alphonce Maghaga Mwa Chonye v Operation 680 Ltd, five months' salary was appropriate.

The claimant bore the burden of proving unpaid overtime. He produced no written or other evidence that he had ever claimed overtime during employment or that the respondent refused to pay it. Records of clocking in and out were said to be kept by the respondent but no claim was made during the employment, so the allegation after separation could not suffice.