[2019] KEELRC 2421 (KLR)
The court found that the respondent, having failed to file a defence or attend court, did not discharge the statutory burden of proving the reasons for termination. The claimant's evidence was unchallenged, and the court accepted that she was dismissed without notice or valid reason. Consequently, the termination...
Source-derived case information.
- Citation
- [2019] KEELRC 2421 (KLR)
- Parties
- Claimant: Mary N. Muchai; Respondent: Chemserve Cleaning Services Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1657 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed. Judgment entered for the claimant.
- Judges
- NJ Abuodha, DI Wasike
- Legal Topics
- Unfair Termination, Burden of Proof, Notice Pay, Terminal Dues, Compensation for Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary N. Muchai
Claimant
Chemserve Cleaning Services Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's termination from employment was unfair.
- 2 Whether the respondent discharged the burden of proof for the reasons of termination.
- 3 Whether the claimant is entitled to terminal dues and compensation.
Ratio Decidendi
The court found that the respondent, having failed to file a defence or attend court, did not discharge the statutory burden of proving the reasons for termination. The claimant's evidence was unchallenged, and the court accepted that she was dismissed without notice or valid reason. Consequently, the termination was deemed unfair under the Employment Act. The court awarded the claimant one month salary in lieu of notice, unpaid leave, salary for days worked in May 2014, compensation for unfair dismissal, and costs of the suit, subject to statutory deductions.
Court Disposition
Claim allowed. Judgment entered for the claimant.
Orders
- The respondent shall pay the claimant one month salary in lieu of notice (Kshs. 11,350).
- The respondent shall pay the claimant unpaid leave (Kshs. 11,350).
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OFKENYA AT NAIROBI
CAUSE NO. 1657 OF 2014
MARY N. MUCHAI................................................................CLAIMANT
VERSUS
CHEMSERVE CLEANING SERVICES LIMITED......RESPONDENT
JUDGEMENT
1. The claimant pleaded that she was employed by the respondent in a cleaner for eleven years at monthly salary of Kshs.11,350 by the time of termination of her employment.
2. According to the claimant on 2nd May, 2014 she was assigned work at Equatorial Bank where she worked for 3 days and expressed to her supervisor the challenges she was having with the assignment owing to her health problems.
3. On 6th May, 2014 she was reassigned to Karen but when she reported to work on 7th May, 2014, the administrative manager, one Faith Wanjiku verbally informed her that she had been dismissed from employment.
4. According to the claimant, her dismissal was unfair as no reason was given.
5. The matter proceeded ex parte after the court became satisfied that the respondent was duly served but failed to file a response to the claim and attend court for the hearing.
6. In her oral evidence the claimant further stated that she was employed in 2003. On 7th May, 2014 she worked up to around 1 p.m. when she was called to the office and told them about her health condition. According to her, she was asked to go home and rest. She was hence told she was dismissed. She was never given any termination notice. Further the respondent did not pay her terminal dues upon termination.
7. In claims for unfair termination the burden of proof of reasons for termination is on the employer and failure to discharge the burden would lead to the conclusion that the termination was unfair. The respondent neither filed a defence nor attended court to defend the claim. The burden cast upon the respondent by law therefore remained undischarged leading to the finding that the termination was unfair.
8. The court therefore awards the claimant as follows:-
Kshs.
a) One month salary in lieu of notice 11,350
b) Unpaid leave 11,350
c) Six days worked in May, 2014 2,300
d) Eight months’ salary as compensation
for unfair dismissal 90,800
115,800
e) Costs of the suit.
f) Items (a), (b), (c) and (d) shall be subject to taxes and statutory deductions.
9. It is so 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