Onyango v Africa Apparel Epz LImited (Cause 1463 of 2017) [2024] KEELRC 2511 (KLR)

Section 41 mandates notification of the intended action and grounds, an adequate opportunity to make representations, the right to be accompanied by a colleague or union representative, and consideration of those representations. The Respondent claimed a hearing was impossible because the Claimant had deserted duty and could not be reached, yet it admitted in its pleadings that the employment was terminated on 5th February 2017, by which date the Claimant had reported back and was available. The Respondent therefore failed to follow the mandatory procedure.

Section 43 places the burden on the employer to prove the reason for termination, failing which the termination is unfair under Section 45. The Respondent's evidence on how and when the termination occurred was sketchy and contradicted its pleadings. The Claimant was absent for only one day and explained his absence (his father's illness); the Respondent produced no attendance records to rebut this. No reasonable employer could have terminated him for desertion on those facts.

The termination letter admitted the Claimant's entitlement to one month's notice pay and compensation for 22 outstanding leave days, so those were granted on admission. The compensatory award under Section 49para 1[c] is discretionary; considering the failure of procedural and substantive fairness, the attempted change of the Claimant's role without legal basis, and the length of service, five months' gross salary was appropriate.