[2019] KEELRC 1487 (KLR)
The court found that the respondent failed to discharge its statutory burden of proving that the termination of the claimant's employment was lawful. The claimant's evidence, being uncontested, established that he was terminated without notice or justification while recovering from a workplace injury. The court...
Source-derived case information.
- Citation
- [2019] KEELRC 1487 (KLR)
- Parties
- Claimant: Justus Ombui Maganga; Respondent: Metal Cans and Closures (K) Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1611 of 2015
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed. Judgment entered for the claimant as prayed.
- Judges
- DI Wasike
- Legal Topics
- Unfair Termination, Termination Without Notice, Service Pay, Workplace Injury
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Justus Ombui Maganga
Claimant
Metal Cans and Closures (K) Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's termination was unfair and unlawful.
- 2 Whether the claimant is entitled to salary in lieu of notice, compensation for unfair termination, service pay, and costs.
Ratio Decidendi
The court found that the respondent failed to discharge its statutory burden of proving that the termination of the claimant's employment was lawful. The claimant's evidence, being uncontested, established that he was terminated without notice or justification while recovering from a workplace injury. The court applied the relevant provisions of the Employment Act, awarding the claimant one month's salary in lieu of notice, six months' salary for unfair termination, service pay for the period worked, and costs of the suit. The total award is subject to taxes and statutory deductions.
Court Disposition
Claim allowed. Judgment entered for the claimant as prayed.
Orders
- The respondent shall pay the claimant one month's salary in lieu of notice (Kshs 18,000).
- The respondent shall pay the claimant six months' salary for unfair termination (Kshs 108,000).
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OFKENYA
AT NAIROBI
CAUSE NUMBER 1611 OF 2015
JUSTUS OMBUI MAGANGA............................................CLAIMANT
VERSUS
METAL CANS AND CLOSURES (K) LIMITED.........RESPONDENT
JUDGEMENT
1. In his memorandum of claim filed on 15th September, 2015, the claimant pleaded that she was initially hired by the respondent on 15th April, 2012 as a helper at hourly pay of Kshs 57/= which translated to Kshs 13,680/=. He was later promoted to a machine operator on 20th October, 2013 at a salary of Kshs 75/= per hour which translated to Kshs 18,000/= per month.
2. On or about 24th April, 2015 whilst the claimant was in ordinary course of his employment and lawfully operating his machine he sustained serious injuries on three of his fingers which were cut as he was operating the machine. On or about 2nd May, 2015 while the claimant was recuperating at home, the respondent informed him that his contract of employment has been terminated. This was done without giving him any notice or legal justification for the termination. The respondent further refused to pay the claimant his full terminal benefits.
3. The respondent though served never entered appearance or filed a response to the claim. At the oral hearing the claimant adopted his witness statement which he recorded on 15th September, 2015 together with the supporting documents filed with the claim. In the statement the claimant repeated the averments in the memorandum of claim.
4. Under the Employment Act, the burden of proof that a lawful termination of service has occurred rest with the employer. In this particular case, the respondent though served didn’t file any response to the claim. Neither did it attend court to cross-examine the claimant over his allegations. The claimant’s claim therefore remained uncontested and the court therefore proceeds to award the claimant as follows:
a. One month’s salary in lieu of notice 18,000
b. Six months’ salary for unfair termination of service 108,000
c. Service pay for 15 days each complete year of service 23,010
149,010
d. Costs of the suit
5. The award shall be subject to taxes and statutory deductions.
6. It is so ordered.
Dated at Nairobi this 17th day of May 2019
Abuodha J. N.
Judge
Delivered this 17th day of May 2019
Abuodha J. N.
Judge
In the presence of:-
........................................for the Claimant and
...........................................for the Respondent.