[2018] KEELRC 345 (KLR)
The court found that the respondent failed to discharge the legal burden of proving that the claimant was subjected to a fair disciplinary process before termination. Despite allegations of misconduct and warnings, the respondent did not attend the hearing or provide evidence of a disciplinary hearing or written...
Source-derived case information.
- Citation
- [2018] KEELRC 345 (KLR)
- Parties
- Claimant: Pauline Ombayo; Respondent: Upperhill Radiology Centre
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1403 of 2013
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the claimant.
- Judges
- NJ Abuodha
- Legal Topics
- Unfair Termination, Summary Dismissal, Disciplinary Procedure, Notice Pay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Pauline Ombayo
Claimant
Upperhill Radiology Centre
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was unfairly terminated from employment.
- 2 Whether the respondent followed due process in terminating the claimant.
- 3 Whether the claimant is entitled to compensation and terminal dues.
Ratio Decidendi
The court found that the respondent failed to discharge the legal burden of proving that the claimant was subjected to a fair disciplinary process before termination. Despite allegations of misconduct and warnings, the respondent did not attend the hearing or provide evidence of a disciplinary hearing or written warnings. The absence of procedural fairness rendered the termination unfair under Kenyan law. Consequently, the claimant was entitled to compensation for unfair termination, salary in lieu of notice, and salary for days worked, subject to statutory deductions.
Court Disposition
Judgment for the claimant.
Orders
- The respondent shall pay the claimant one month’s salary in lieu of notice (Kshs 20,000).
- The respondent shall pay the claimant salary for 12 days worked in June 2013 (Kshs 8,000).
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF
KENYA AT NAIROBI
CAUSE NO 1403 OF 2013
PAULINE OMBAYO..........................................................CLAIMANT
VERSUS
UPPERHILL RADIOLOGY CENTRE........................RESPONDENT
JUDGEMENT
1. The claimant pleaded that she was employed by the respondent from 6th September, 2010 of 12th June 2013 as cleaner. According to her, she was on 12th June, 2013 dismissed by the respondent without notice or payment of salary in lieu thereof. The claimant further averred that during the period she worked for the respondent, she never went on annual leave nor paid in lieu.
2. The respondent on its part admitted that the claimant was its employee but averred that she was dismissed with notice. According to the respondent, the claimant had been given several verbal warnings and two written ones but she refused to heed the respondent’s rules and regulations. The respondent averred that the claimant was habitual late comer and often left work unattended.
3. The respondent further pleaded that the claimant was upon termination paid all her dues. According to the respondent, the claimant prior to the termination was granted numerous opportunities to be heard but declined to provide explanations.
4. At the oral hearing only the claimant attended and gave evidence. She stated that her salary at the time of termination was Kshs 20,000/= per month. It was her evidence that her boss told her that she never wanted to see the claimant again and that her boss hired his relative in her place as soon as she got terminated. She admitted receiving only verbal warning and not written ones.
5. In claims arising out of unfair termination of employment, the burden is usually cast upon the employer to prove reasons for the termination. Failure to do so would lead to a finding that the termination was unfair. The respondent herein was duly served and filed a defence. It alleged that the termination of the claimant’s service was merited after several verbal and two written warnings. That may have been so, but the respondent did not provide any evidence to show that the claimant was subjected to any disciplinary hearing before her services were terminated. This is a legal requirement and failure to show this took place would lead to a finding that the termination was unfair in terms of procedure followed even if the employer had valid reasons to termination.
6. As observed earlier the respondent never attended court during the hearing. The burden cast upon them by law therefore remained undischarged. The court in the circumstances will award the claimant as follows:
Kshs
a. One month’s salary I lieu of notice 20,000
b. Salary for 12 days worked in June, 2013 8,000
c. Eight months’ salary as compensation for
unfair termination of service 160,000
188,000
d. Costs
7. Items (a) (b) and (c) shall be subject to taxes and statutory deductions.
8. It is ordered.
Dated at Nairobi this 30th day of November, 2018
Abuodha Jorum Nelson
Judge
Delivered this 30th day of November, 2018
Abuodha Jorum Nelson
Judge
In the presence of:-
…………………….…for the Claimant and
…………….............…for the Respondent.