[2020] KEELRC 346 (KLR)
The court found that the respondent terminated the claimant's employment without giving reasons, notice, or following due process as required by the Employment Act, 2007. The respondent failed to discharge the statutory burden of proving valid and fair reasons for termination and did not participate in the...
Source-derived case information.
- Citation
- [2020] KEELRC 346 (KLR)
- Parties
- Claimant: Paul Mbuya Jakoyo; Respondent: Horizon Contact Centres Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 760 of 2016
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed. Judgment for the claimant.
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Termination, Procedural Fairness, Notice of Termination, Compensation for Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Mbuya Jakoyo
Claimant
Horizon Contact Centres Ltd
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the respondent verbally terminated the claimant's employment contract without notice, justifiable reasons, or payment in lieu thereof.
- 2 Whether the termination was procedurally and substantively fair under the Employment Act, 2007.
Ratio Decidendi
The court found that the respondent terminated the claimant's employment without giving reasons, notice, or following due process as required by the Employment Act, 2007. The respondent failed to discharge the statutory burden of proving valid and fair reasons for termination and did not participate in the proceedings to challenge the claimant's assertions. The court held that the termination was both procedurally and substantively unfair, entitling the claimant to compensation and salary in lieu of notice. The court also ordered the issuance of a certificate of service as a statutory right.
Court Disposition
Claim allowed. Judgment for the claimant.
Orders
- Respondent to pay claimant Kshs 19,000 as salary in lieu of notice.
- Respondent to pay claimant Kshs 38,000 as compensation for unfair termination.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 760 OF 2016
PAUL MBUYA JAKOYO..............................................................CLAIMANT
VERSUS
HORIZON CONTACT CENTRES LTD.................................RESPONDENT
JUDGMENT
1. Paul Mbuya Jakoyo (Claimant) instituted these legal proceedings against Horizon Contact Centres Ltd (Respondent) on 5 May 2016 and he stated the Issues in Dispute as Whether the Respondent verbally terminated the Claimant’s employment contract without giving any notice or justifiable reasons or payment in lieu thereof.
2. Despite filing a Memorandum of Appearance on 21 July 2017, through the firm of Gitonga Kinyanjui & Co. Advocates, the Respondent did not file a Response.
3. When the Cause came up on 3 July 2020 for directions, the Court directed the Claimant to file an affidavit containing his evidence and submissions.
4. The same were filed on 20 July 2020.
5. The Court has considered the affidavit and submissions.
6. The Claimant was employed by the Respondent as a Customer Care Representative on 1 January 2015 at a salary of Kshs 19,000/- (copy of pay slip was filed).
7. According to the Claimant, the Respondent gave him leave in October 2015 to go attend to his sick father but he succumbed to illness forcing him (Claimant) to request for permission to extend the leave. The permission was granted.
8. The Claimant asserted that when he resumed duty, he was informed that his employment had been terminated though no reasons were given.
9. The Claimant’s case remained uncontroverted and the Court has no hesitation in finding that the Respondent decision was in breach of sections 35(1)(c) and 41 of the Employment Act, 2007. The decision was procedurally unfair.
10. In terms of sections 43 and 45 of the Act, it was incumbent upon the Respondent to prove the reasons for terminating the Claimant’s contract. The Respondent snubbed the opportunity to discharge the burden and the Court can therefore conclude that the decision was not for valid or fair reasons.
Compensation and Salary in lieu of notice
11. For the failure to issue a written notice of termination of employment, the Court awards the Claimant the equivalent of 1-month salary in lieu of notice.
12. And for the unfair termination of employment and considering that the Claimant had served for about only 10 months, the Court awards the equivalent of 2-months’ salary as compensation.
Certificate of Service
13. A certificate of service is a statutory entitlement and the Respondent should issue one to the Claimant within 21 days.
Conclusion and Orders
14. The Court finds and declares that the termination of the Claimant’s employment was unfair and awards him
(a) Salary in lieu of notice Kshs 19,000/-
(b) Compensation Kshs 38,000/-
TOTAL Kshs 57,000/-
15. The award to attract interest at Court rates from date of judgment.
16. Respondent to issue certificate of service within 21 days.
17. The Claimant to have costs.
Delivered through Microsoft teams, dated and signed in Nairobi on this 2nd day of October 2020.
Radido Stephen
Judge
Appearances
For Claimant Kenyatta Odiwuor & Co. Advocates
For Respondent Gitonga Kinyanjui & Co. Advocates
Court Assistant Judy Maina