[2020] KEELRC 202 (KLR)
The court found that the claimant's dismissal was both procedurally and substantively unfair. The respondent failed to participate in the proceedings and did not discharge its statutory burden to prove the fairness and validity of the reason for termination or that due process was followed. The claimant's evidence...
Source-derived case information.
- Citation
- [2020] KEELRC 202 (KLR)
- Parties
- Claimant: Pascal Lazarus Ochudo; Respondent: Zap Car Hire & Tours Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1649 of 2016
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed in part; claimant awarded compensation and salary in lieu of notice; certificate of service to be issued; costs and interest granted.
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Termination, Procedural Fairness, Substantive Fairness, Compensation Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pascal Lazarus Ochudo
Claimant
Zap Car Hire & Tours Ltd
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's termination was unfair under the Employment Act, 2007.
- 2 Whether the claimant is entitled to compensation and salary in lieu of notice.
- 3 Whether the claimant is entitled to other reliefs including accrued leave, July 2016 salary, and certificate of service.
Ratio Decidendi
The court found that the claimant's dismissal was both procedurally and substantively unfair. The respondent failed to participate in the proceedings and did not discharge its statutory burden to prove the fairness and validity of the reason for termination or that due process was followed. The claimant's evidence that he was dismissed without a hearing remained unrebutted. Consequently, the court awarded the claimant compensation equivalent to four months' gross salary for unfair termination and one month's salary in lieu of notice. Claims for accrued leave and July 2016 salary were declined due to lack of evidence. The respondent was ordered to issue a certificate of service within 21...
Court Disposition
Claim allowed in part; claimant awarded compensation and salary in lieu of notice; certificate of service to be issued; costs and interest granted.
Orders
- Respondent to pay the claimant Kshs 67,292 as compensation for unfair termination.
- Respondent to pay the claimant Kshs 16,823 as salary in lieu of notice.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 1649 OF 2016
PASCAL LAZARUS OCHUDO..............................CLAIMANT
v
ZAP CAR HIRE & TOURS LTD.......................RESPONDENT
JUDGMENT
1. Pascal Lazarus Ochudo (Claimant) sued Zap Car Hire and Tours Ltd on 17 August 2016 alleging unfair termination of employment and breach of contract.
2. According to an affidavit of service filed in Court on 24 July 2017, the Respondent was served with Notice of Summons and Memorandum of Claim on 5 September 2016 and the service was acknowledged by one Zohaib.
3. Despite the service, the Respondent did not enter Appearance and/or a Response.
4. On 19 June 2018, the Court directed that the Cause proceeds to formal proof.
5. When the Cause was called out for hearing on 23 September 2020 and because of the Covid-19 public health pandemic, the Court ordered the Claimant to file an affidavit containing his evidence.
6. The Claimant filed the affidavit on 7 October 2020 and submissions on 8 October 2020.
7. The Court has considered the affidavit and the submissions.
Unfair termination of employment
8. The Claimant was employed by the Respondent as a driver around 24 September 2013.
9. The Claimant’s evidence that he was dismissed on 15 July 2016 without a hearing remains unrebutted. The decision was procedurally unfair.
10. The reason for the dismissal, the Claimant stated was that he had left behind a staff member he was meant to transport to someplace.
11. Since the Respondent did not participate in the proceedings to discharge the burden of proving the fairness and validity of the reasons, the Court can only conclude that the dismissal of the Claimant was also substantively unfair.
Compensation and Salary in lieu of notice
12. The Claimant served the Respondent for about 4 years and in consideration of the length of service, the Court will award the equivalent of 4-months gross wages as compensation (gross salary was Kshs 16,823/-).
13. Because the Claimant was not given the notice envisaged by section 35(1)(c) of the Employment Act, 2007, the Court will allow the equivalent of 1-month salary in lieu of notice.
Breach of contract
Accrued leave
14. The Claimant did not tender any evidence on this head of the claim. Relief is declined.
July 2016 salary
15. Although praying for Kshs 16,823/- on account of July 2016 salary the Claimant did not lead any evidence thereto in the affidavit. Relief is declined.
Certificate of Service
16. A certificate of service is a statutory right and the Respondent should issue one to the Claimant within 21 days.
Conclusion and Orders
17. The Court finds and declares that the dismissal of the Claimant was unfair and awards him
(a) Compensation Kshs 67,292/-
(b) Salary in lieu of notice Kshs 16,823/-
TOTAL Kshs 84,115/-
18. Respondent to issue a certificate of service within 21 days.
19. Claimant to have costs and interest from the date of judgment.
Delivered through Microsoft teams, dated and signed in Kisumu on this 18th day of November 2020.
Radido Stephen
Judge
Appearances
For Claimant Mr. Jaoko instructed by Achola Jaoko & Co. Advocates
Respondent did not participate
Court Assistant Judy Maina