[2021] KEELRC 2052 (KLR)
The court found that the claimant, having served the respondent for more than one month continuously, was not a casual employee but a term employee by operation of law. The evidence, including documentary proof of a dispute with the trade union, supported the claimant's assertion that his termination was linked to...
Source-derived case information.
- Citation
- [2021] KEELRC 2052 (KLR)
- Parties
- Claimant: Henry Oluoch Onyango; Respondent: Anvi Emporium Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 15 of 2018
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed in part; unfair termination declared; compensation and pay in lieu of notice awarded.
- Legal Topics
- Constructive Dismissal, Unfair Termination, Casual Vs Term Employment, Trade Union Membership, Compensation for Termination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Oluoch Onyango
Claimant
Anvi Emporium Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was a casual or term employee under the Employment Act, 2007.
- 2 Whether the claimant was unfairly terminated from employment.
- 3 Whether the claimant is entitled to compensation and pay in lieu of notice.
Ratio Decidendi
The court found that the claimant, having served the respondent for more than one month continuously, was not a casual employee but a term employee by operation of law. The evidence, including documentary proof of a dispute with the trade union, supported the claimant's assertion that his termination was linked to his union activities. The respondent failed to follow due process by not issuing a show-cause letter or ultimatum before treating the claimant's absence as desertion. The court concluded that the termination was unfair and awarded compensation equivalent to five months' wages and one month’s salary in lieu of notice, but denied severance pay as the separation was not due to...
Court Disposition
Claim allowed in part; unfair termination declared; compensation and pay in lieu of notice awarded.
Orders
- The claimant is awarded compensation of Kshs 30,800/-.
- The claimant is awarded pay in lieu of notice of Kshs 6,160/-.
Full Case Text
Judgment text and source record
48 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT KISUMU
CAUSE NO. 15 OF 2018
HENRY OLUOCH ONYANGO…………………….CLAIMANT
VRSUS
ANVI EMPORIUM LIMITED…….....…………RESPONDENT
JUDGMENT
1. Henry Oluoch Onyango (the Claimant) was employed by Anvi Emporium Ltd (the Respondent) as a machine operator.
2. On 15 January 2018, the Claimant sued the Respondent, alleging constructive dismissal and breach of contract.
3. In a Response filed on 25 March 2018, the Respondent contended that the Claimant had deserted duty.
4. The Cause was heard on 30 April 2019 and 4 December 2019, after which the Claimant filed his submissions on 20 February 2020. The Respondent filed its submissions on 17 June 2020.
5. The Court will adopt the Issues as identified by the parties in their written submissions.
Underpayments
6. Underpayment of wages arises as a result of payment of wages below the prescribed minimum rates or contractually agreed wages.
7. The Claimant herein did not disclose the particular Regulation of Wages (Amendment) Orders which applied in his case. Without the disclosure, the Court is unable to find there was an underpayment of wages below the gazetted minimums.
Nature of contract
8. The Respondent’s case was that the Claimant was a casual worker.
9. Section 2 of the Employment Act, 2007 defines a casual employee.
10. The Claimant served the Respondent for more than one month continuously, and by dint of sections 9 and 37 of the Employment Act, 2007 became a term employee and not a casual employee.
Unfair termination of employment
11. The parties gave conflicting testimony on the circumstances leading to the separation.
12. The Claimant testified that his problems started upon him and other employees joining a trade union. He stated that some employees and himself were called and given 10 days leave purportedly on account of reduced work and that upon reporting back, they were sent on another 11 days leave and that the further attempts to resume work were not successful until he moved to Court.
13. The Claimant produced communication to evidence a dispute between the trade union and the Respondent.
14. The Respondent’s Managing Director testimony was that the Claimant left employment in June 2016 and never returned back.
15. If the narration by the Respondent is true, then it means that the Claimant was guilty of misconduct by failing to report to work (absence without permission or lawful cause).
16. In such a case, the Respondent ought to have given an ultimatum/show-cause to the Claimant to explain why he was not reporting to work before exercising its right as the innocent party to accept the Claimant’s repudiation of contract (see Societe General, London Branch v Geys (2012) UKSC 63).
17. In the view of the Court, the testimony by the Claimant that the separation was due to his joining the trade union appears plausible as there is documentary evidence.
18. The Court finds that this was a case of unfair termination of employment.
Compensation and salary in lieu of notice
19. The Claimant served the Respondent from 2005 to around 2016, even if intermittently.
20. Considering the length of service, the Court is of the view that compensation equivalent to 5-months wages would be appropriate (the last wage was Kshs 280/- per day and this multiplied with 22 days in a month gives an average monthly wage of Kshs 6,160/-).
21. By dint of section 35(1) of the Employment Act, 2007, the Court will allow the equivalent of 1-month salary in lieu of notice.
Severance pay
22. The separation herein was not on account of redundancy, and therefore, severance pay is not due.
Conclusion and Orders
23. The Court finds and declares that the Claimant’s employment was unfairly terminated, and he is awarded:
(i) Compensation Kshs 30,800/-
(ii) Pay in lieu of notice Kshs 6,160/-
TOTAL Kshs 36,960/-
24. Claimant to have costs.
Delivered through Microsoft teams, dated and signed in Kisumu on this 3rd day of March 2021.
Radido Stephen, MCIArb
Judge
Appearances
For Claimant Nyanga & Co. Advocates
For Respondent K’Owino & Co. Advocates
Court Assistant Chrispo Aura