[2019] KEELRC 2149 (KLR)
The court found that while the Respondent substantially complied with procedural fairness by issuing a show cause letter and receiving a response, it failed to attend court or provide evidence to substantiate the reasons for dismissal. Under sections 43 and 45 of the Employment Act, the burden was on the Respondent...
Source-derived case information.
- Citation
- [2019] KEELRC 2149 (KLR)
- Parties
- Claimant: Duncan Mwagogo Mwaviswa; Respondent: Adix Plastics Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 965 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim partly allowed; dismissal declared unfair; compensation and pay in lieu of notice awarded; other claims dismissed.
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Termination, Procedural Fairness, Substantive Fairness, Compensation for Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Duncan Mwagogo Mwaviswa
Claimant
Adix Plastics Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the dismissal of the Claimant was unfair under the Employment Act, 2007.
- 2 Whether the Claimant was entitled to compensation and pay in lieu of notice.
- 3 Whether the Claimant proved breach of contract claims for leave, unpaid holidays, days off, and overtime.
Ratio Decidendi
The court found that while the Respondent substantially complied with procedural fairness by issuing a show cause letter and receiving a response, it failed to attend court or provide evidence to substantiate the reasons for dismissal. Under sections 43 and 45 of the Employment Act, the burden was on the Respondent to prove that the dismissal was based on valid and fair reasons. The Respondent's failure to discharge this burden rendered the dismissal substantively unfair. The Claimant was therefore entitled to compensation equivalent to two months' gross wages and pay in lieu of notice. The court dismissed the claims for leave, unpaid holidays, days off, and overtime as unproven or...
Court Disposition
Claim partly allowed; dismissal declared unfair; compensation and pay in lieu of notice awarded; other claims dismissed.
Orders
- The dismissal of the Claimant is declared unfair.
- The Respondent shall pay the Claimant Kshs 36,742 as compensation.
Full Case Text
Judgment text and source record
56 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 965 OF 2014
DUNCAN MWAGOGO MWAVISWA..............CLAIMANT
v
ADIX PLASTICS LIMITED........................RESPONDENT
JUDGMENT
1. On 5 June 2014, Duncan Mwagogo Mwaviswa (Claimant) instituted legal proceedings against Adix Plastics Ltd (Respondent) contending that his dismissal through a letter dated 1 July 2014 was unfair. He also alleged breach of contract (Claimant sought a total of Kshs 1,086,391/-).
2. In its Response, the Respondent asserted that the dismissal of the Claimant from work because of gross misconduct and negligence, and was fair.
3. The Claimant joined issue with the Response on 31 August 2015 and the Cause was heard on 22 January 2019 (the Court had directed the parties to file Agreed Issues on or before 30 March 2018 but the same were not filed. Respondent did not file witness statements).
4. Although served with a hearing notice on 11 January 2019 (affidavit of service on record), the Respondent was not represented during the hearing.
5. The Claimant filed his submissions on 8 February 2019.
6. The Court notes that the Respondent had earlier on been invited on 22 November 2018 to attend the registry for fixing of a hearing date but it did not appear.
Procedural fairness
7. The Claimant gave sworn testimony and stated that he was issued with a show cause dated 27 June 2014 and that he responded to the show cause on 28 June 2014.
8. The allegations in the show cause were that the Claimant had carelessly performed his work by stopping a chiller without any reason and that he had damaged a mould and failing to report the damage.
9. The Claimant asserted that he was not afforded an opportunity to be heard nor given a notice of termination.
10. In so far as the Claimant was informed of the allegations to confront and was afforded an opportunity to respond, the Court is satisfied that the Respondent was substantially in compliance with the provisions of sections 35(1)(c) and 41 of the Employment Act, 2007.
Substantive fairness
11. The Claimant testified that the chiller stopped because of a power failure over which he had no control.
12. The Respondent did not attend Court to rebut or interrogate the testimony of the Claimant.
13. Further, in terms of sections 43 and 45 of the Employment Act, 2007, the Respondent had the burden of proving the reasons for dismissing the Claimant, and that the reasons were valid and fair.
14. The Respondent did not discharge that obligation and the Court therefore concludes that the reasons for the dismissal of the Claimant were not valid and fair.
Compensation
15. In light of the Claimant’s 2 year of service, the Court is of the view that the equivalent of 2 months gross wages as compensation would be appropriate (Claimant’s proved gross pay for June 2014 was Kshs 18,371/-).
Pay in lieu of notice
16. The Court also finds that the Claimant is entitled to 1 month pay in lieu of notice in terms of section 35(1)(c) as read with section 36 of the Employment Act, 2007 (basic pay was Kshs 11,100/-).
Breach of contract
Salary for June 2014
17. The Claimant admitted that he was paid earned wages for June 2014.
Leave
18. An employee is entitled to at least 21 days annual leave after every 12 months service.
19. The Claimant’s assertion that he did not go on leave from 2012 to 2014 was not rebutted.
20. However, the copy of pay slip he produced show an item called leave encashment.
21. The Court will therefore not allow this head of claim.
Unpaid holidays
22. The Claimant did not disclose particulars of the holidays he worked and was not paid. The Court finds this head of claim as not proved.
Days off
23. Under this head, the Claimant sought Kshs 117,579/- for off days during the tenure of the employment. This being in the nature of a special damage, the Claimant did not prove it to the required standard.
Overtime
24. The copy of pay slip produced by the Claimant show that overtime work was compensated. The Court therefore declines to find for the Claimant.
Conclusion and Orders
25. The Court finds and declares that the dismissal of the Claimant was unfair and awards him
(a) Compensation Kshs 36,742/-
(b) Pay in lieu of notice Kshs 11,100/-
TOTAL Kshs 47,842/-
26. The Court finds and declares that the Claimant failed to prove breach of contract.
27. Claimant to have costs on half scale.
Delivered, dated and signed in Nairobi on this 1st day of March 2019.
Radido Stephen
Judge
Appearances
For Claimant Mr. Mulaku instructed by Namada & Co. Advocates
For Respondent J.O Juma & Co. Advocates
Court Assistant Lindsey