[2015] KEELRC 1006 (KLR)
The court found that the respondent failed to provide any justification or reasons for the termination of the claimant's employment, despite being served and entering appearance. The claimant made several attempts to obtain an explanation for his termination, all of which were unsuccessful. The Ministry of Labour...
Source-derived case information.
- Citation
- [2015] KEELRC 1006 (KLR)
- Parties
- Applicant: Kenya Hotels and Allied Workers Union; Respondent: Daben Limited (Dolce The Club)
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1121 of 2011
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed. Judgment entered for the claimant.
- Legal Topics
- Unfair Termination, Terminal Dues, Burden of Proof, Severance Pay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Hotels and Allied Workers Union
Applicant
Daben Limited (Dolce The Club)
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's termination was unfair or unlawful.
- 2 Whether the claimant is entitled to terminal dues and compensation for unfair dismissal.
Ratio Decidendi
The court found that the respondent failed to provide any justification or reasons for the termination of the claimant's employment, despite being served and entering appearance. The claimant made several attempts to obtain an explanation for his termination, all of which were unsuccessful. The Ministry of Labour had already recommended that the termination be treated as a normal termination and that terminal dues be paid. Applying Section 43 of the Employment Act, the court held that the burden of proving the reasons for termination lies with the employer, and failure to do so renders the termination unfair. Consequently, the court deemed the termination unfair and awarded the claimant...
Court Disposition
Claim allowed. Judgment entered for the claimant.
Orders
- The respondent shall pay the claimant one month’s pay in lieu of notice (Kshs. 5,000).
- The respondent shall pay the claimant house allowance (Kshs. 1,500).
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NUMBER 1121 OF 2011
KENYA HOTELS AND ALLIED WORKERS UNION…………CLAIMANT
VERSUS
DABEN LIMITED (DOLCE THE CLUB)……………………RESPONDENT
JUDGMENT
1. This cause proceeded as an undefended cause after the Court noted that despite the fact that the respondent was served and entered appearances no response to the claim was ever filed.
2. The claimant who states he was a former employee of the respondent, informed the Court that the respondent’s management had refused to pay his terminal dues.
3. According to him he was employed in 1998. He produced his job identity card and certificate of merit. At the time of employment he was earning Kshs.1200/= per week which was later advanced for Kshs.5,000 per month.
4. According to him his relationship with the respondent was cordial and he did not understand why his services were terminated in May, 2004. He tried to seek audience with the respondent Managing Director but was unable to prompting him to report the matter to the Union which took it up and eventually referred the same to the Ministry of Labour for arbitration. The Ministry adjudicated the matter and recommended that his termination be reduced to normal termination and he be paid his terminal dues. He thus sought the order of the Court that he be paid his terminal dues as per his statement of claim.
5. In claims for unlawful and or unfair dismissal, the onus of proving the wrongfulness or unfairness of the termination shall rest on the employee while the employer shall have the burden of justifying the grounds of the termination. Section 43 further places the burden of proving the reasons for termination on the employer and failure to do so, the Court will deem such termination unfair.
4. The grievant in this matter documented and narrated to Court the various attempts he made to have the respondent available to explain to him the reason for termination of his services to no avail. In that respect, the Court will proceed to deem the termination unfair and award him as follows:-
Kshs.
(a) One month’s pay in lieu of notice………………......……5,000
(b) House allowance………………………………........……..1,500
(c) Accrued leave……………………………………………..24,000
(d) 6 months’ salary as compensation for unfair
dismissal………………………………………........………….30,000
(e) Severance pay at 15 days’ pay for each
Complete year of service………………………….........…….13,400
70,900
5. The claimant shall have costs of the suit.
6. It is so ordered.
Dated at Nairobi this 22nd day of May 2015
Abuodha J. N.
Judge
Delivered this 22nd day of May 2015
In the presence of:-
…………………………………………………………for the Claimant and
……………………………………………………………for the Respondent.
Abuodha J. N.
Judge