[2018] KEELRC 243 (KLR)
The court found that the respondent failed to provide any documentary evidence or testimony showing that reasonable efforts were made to contact the claimant or require her to show cause for alleged abscondment. No letter or demand was exhibited, and no evidence was called at trial to support the respondent's...
Source-derived case information.
- Citation
- [2018] KEELRC 243 (KLR)
- Parties
- Claimant: Florence Mwende; Respondent: City Panel Beaters & Painters Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 901 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed. Termination declared unfair. Compensation and notice pay awarded.
- Judges
- NJ Abuodha
- Legal Topics
- Unfair Termination, Maternity Leave Rights, Burden of Proof, Notice Period, Compensation for Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Florence Mwende
Claimant
City Panel Beaters & Painters Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was unfairly terminated from employment.
- 2 Whether the respondent discharged the burden of proof for termination on grounds of absconding duty.
- 3 Whether the claimant is entitled to compensation and notice pay for unfair termination.
Ratio Decidendi
The court found that the respondent failed to provide any documentary evidence or testimony showing that reasonable efforts were made to contact the claimant or require her to show cause for alleged abscondment. No letter or demand was exhibited, and no evidence was called at trial to support the respondent's position. Under section 43 of the Employment Act, the burden of proof for the reasons for termination lies with the employer. The respondent's failure to discharge this burden rendered the termination unfair. The court therefore concluded that the claimant was unfairly terminated and entitled to compensation and notice pay.
Court Disposition
Claim allowed. Termination declared unfair. Compensation and notice pay awarded.
Orders
- Respondent to pay claimant one month's salary in lieu of notice (Kshs 18,240).
- Respondent to pay claimant ten months' salary as compensation for unfair termination (Kshs 182,400).
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF
KENYA AT NAIROBI
CAUSE NO 901 OF 2014
FLORENCE MWENDE.........................................................................CLAIMANT
VERSUS
CITY PANEL BEATERS & PAINTERS LIMITED......................RESPONDENT
JUDGEMENT
1. The claimant averred that she was employed by the respondent in 2008 February as a receptionist and performed her duties diligently and never had any disciplinary cases.
2. She further stated that sometime in April, 2012 she applied for maternity leave which was granted for three months however she was not paid any salary during the leave period. On 27th July 2013 the claimant once again applied for her second maternity leave which was approved however when she resumed duty from maternity leave on 11th November, 2013 she was verbally informed by the accountant who was also the acting human resource manager that her employment had been terminated. She was not given any notice prior to the termination or reasons for the termination.
3. The respondent denied the claimants allegations and stated that the claimant was paid her dues upon termination and further that the claimant after spending her three months maternity leave deserted duty and as a consequence cannot allege to have been wrongfully dismissed from service. The claimant reiterated most of the averments in her statement of claim and further stated that she was only paid for leave and one month’s salary when she proceeded on maternity leave.
4. Under section 43 of the Employment Act the burden of proof of reasons for terminating employment rests with the employer. The respondent avers that the claimant absconded duty upon expiry of her maternity leave hence the respondent had no option but terminate her services. The respondent however did not exhibit together with their memorandum of response any letter or demand sent to the claimant to show cause why her services should not be terminated for absconding duty.
5. In a claim for termination on account of absconding work, the employer must show that reasonable effort was made to contact the employee and informed to showcause why his employment should not be terminated for absconding duties. The respondent neither showed this by any document filed with the memorandum of response or called evidence at the trial.
6. Where an employer fails to discharge the burden of proof cast upon it by section 43, the termination shall be deemed unfair.
7. The court therefore reaches the conclusion that the termination of claimants services was unfair and awards her as follows:
Kshs
a) One month’s salary in lieu of notice 18,240
b) Ten months salary as compensation for
unfair termination 182,400
200,640
c) Costs of the suit
8. Items (a) and (b) shall be subject to taxes and statutory deductions
9. It is so ordered.
Dated at Nairobi this 30th day of November, 2018
Abuodha Jorum Nelson
Judge
Delivered this 30th day of November, 2018
Abuodha Jorum Nelson
Judge
In the presence of:-
…………………………………………………………for the Claimant and
……………………………………………………………for the Respondent.