[2019] KEELRC 2474 (KLR)
The court found that the respondent failed to appear or file a defence and did not provide any reasons for the claimant's termination as required by section 43 of the Employment Act. The statutory burden of proof remained undischarged. Consequently, the court deemed the termination unfair and awarded the claimant...
Source-derived case information.
- Citation
- [2019] KEELRC 2474 (KLR)
- Parties
- Claimant: Earnest Nechesa Obuku; Respondent: Bilmas Co. Ltd t/a Bilmas Hotel
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1534 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed. Judgment entered for the claimant.
- Judges
- NJ Abuodha, DI Wasike
- Legal Topics
- Unfair Termination, Summary Dismissal, Burden of Proof, Notice Pay, Leave Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Earnest Nechesa Obuku
Claimant
Bilmas Co. Ltd t/a Bilmas Hotel
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's termination was unfair under the Employment Act.
- 2 Whether the respondent discharged the burden of proof for reasons of termination.
- 3 What remedies the claimant is entitled to for unfair dismissal.
Ratio Decidendi
The court found that the respondent failed to appear or file a defence and did not provide any reasons for the claimant's termination as required by section 43 of the Employment Act. The statutory burden of proof remained undischarged. Consequently, the court deemed the termination unfair and awarded the claimant compensation, notice pay, leave pay, service gratuity, and costs, subject to statutory deductions.
Court Disposition
Claim allowed. Judgment entered for the claimant.
Orders
- Respondent to pay claimant one month’s salary in lieu of notice: Kshs 7,500.
- Respondent to pay claimant payment in lieu of untaken leave: Kshs 15,000.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF
KENYA AT NAIROBI
CAUSE NO 1534 OF 2014
EARNEST NECHESA OBUKU……………………………….CLAIMANT
VERSUS
BILMAS CO. LTD T/A BILMAS HOTEL………………RESPONDENT
JUDGMENT
1. The matter proceeded ex parte after the court became satisfied that the claimant was duly served but failed to enter appearance and file a defence to the claim.
2. In the memorandum of claim filed on 2nd September, 2014 the claimant averred that he was employed by the respondent as a cleaner on 1st June, 2012 and worked until 30th June, 2014.
3. According to the claimant, on the material day he reported to work as usual but the respondent’s manager one Maurice Ojwang barred him from signing in on the grounds that the director had left strict instructions that his services were no longer needed. The said Mr Ojwang paid him his salary for the month of June 2014 and asked him to leave with instructions never to come back to the respondent’s premises.
4. According to the claimant no reason was intimated to him why he was being summarily dismissed.
5. The claimant denied frequently reporting to duty late. She admitted writing an apology letter when she was accused of not
doing her work properly.
6. Under section 43 of the Employment Act the burden of proof of reasons for termination rests on the employer. The respondent did not file appearance and defence to the claim hence the court is unable to know the reasons for the termination of the claimant’s services. The burden cast upon the respondent by law therefore remained undischarged with the conclusion that the court will deem the termination unfair as provided under section 43 of the Employment Act.
7. The court therefore awards the claimant as follows:-
Kshs.
a. One month’s salary in lieu of notice 7,500
b. Payment in lieu of untaken leave 15,000
c. Service gratuity for 2 years 7,500
d. Eight months’ salary as compensation for unfair dismissal 60,000
e. Costs of the suit 90,000
f. Items (a), (b), (c) and (d) shall be subject to taxes and statutory deductions.
8. It is ordered.
Dated at Nairobi this 25th day of January, 2019
Abuodha Jorum Nelson
Judge
Delivered this 25th day of January, 2019
Abuodha Jorum Nelson
Judge
In the presence of:-
…………………………………………………………for the Claimant and
……………………………………………………………for the Respondent.
Abuodha J. N.
Judge