Kenya Union of Commercial Food and Allied Workers v Multi Q Enterprises Limited & another [2014] KEIC 4 (KLR)
The bottom line
#Kenya's Employment Court ruled that employers who keep no employment records lose any dispute about an employee's service history and entitlements.
What this practically means
#Executive summary
#Key legal issues
#Length of service and burden of proof regarding employment records
The Grievant served the Respondents continuously for four (4) years from 2006
The Employment Act obliges employers to keep employment records including contracts, payslips and leave records. The Respondent kept none and could not rebut the Grievant's assertions on dates of employment, nature of employment and manner and amount of payment. The Court therefore gave the benefit of doubt to the Grievant and found four years of continuous service, with no annual leave and no NSSF registration.
Reason for termination where versions are mutually destructive
Termination reduced to a normal termination; Grievant entitled to one month's notice and severance pay at 15 days per completed year of service
The Grievant claimed verbal termination on 19th April 2010 on the ground that there were no orders forthcoming, asserting a retrenchment under Section 40 of the Employment Act; the Respondent claimed she quit voluntarily. The Court found the versions mutually destructive, so the reason for termination was in question. Rather than finding an unfair retrenchment, it treated the separation as a normal termination with attendant entitlements.
Leave entitlement and severance pay
Grievant awarded leave for four years and severance pay for the period, having never gone on leave and not been registered with NSSF
The Court found the Grievant was not granted annual leave during the four years of service and was not registered with NSSF for that period. She was therefore entitled to leave pay computed at the monthly salary of Kshs.16,000/= and to severance pay at 15 days' salary for each completed year of service, awarded against the 1st and 2nd Respondents jointly and severally.
Legal principles established
#- The employer has a statutory obligation to prepare and maintain employment records, and failure to keep such records means the employer cannot rebut the employee's assertions on dates, nature and manner of employment
- Where the parties' versions of the reason for termination are mutually destructive, the court may reduce the termination to a normal termination and award notice and severance pay
Court orders
#- 1.Kshs.16,000/= in lieu of notice
- 2.Kshs.51,692.30 in lieu of leave days not taken
- 3.Kshs.36,923/= severance pay
- 4.Total award of Kshs.104,615/= payable by the 1st and 2nd Respondents jointly and severally with interest at court rates until payment in full
- 5.Costs of the suit awarded to the Claimant
- 6.A certificate of service for the four-year period served to be issued within 30 days from the date of judgment
- Jurisdiction invoked
- Employment Act (employment and labour relations dispute; suit arising from referral after failed conciliation before the District Labour Officer)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial Food and Allied Workers v Multi Q Enterprises Limited & another [2014] KEIC 4 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/4/eng@2014-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.