Fredrick Wandera Orubia v Nairobi Aviation College [2014] KEELRC 1487 (KLR)
The bottom line
#A Kenyan court ruled an employer unfairly sacked a sick worker without a termination letter, awarding him 12 months' salary plus terminal dues.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant was unfairly dismissed from employment
- 2.Whether the Claimant is entitled to the reliefs sought
Key legal issues
#Whether the Claimant was unfairly terminated
Termination was due to ill health and was unfair; the defence of absconding and abusive language was not supported by the Respondent's witnesses
The Respondent pleaded dismissal for absconding duty and abusive language, but both its witnesses confirmed the Claimant was away due to sickness and reported back with a walking stick, and made no reference to dismissal. Salary was stopped while on sick leave, no termination letter was issued, and the promised recall never came. The court therefore found the termination unfair.
Entitlement to remedies under the Employment Act
Claimant awarded leave pay for 84 days, one month's notice pay, service pay at 15 days per year under section 35(5), and 12 months' salary compensation under section 49(1)(c)
Leave entitlement was uncontested and computed at 21 days per year under section 28. Having found unfair termination, notice pay under section 49(1)(a) followed. Absence of evidence of NSSF registration entitled him to service pay under section 35(5). Compensation of 12 months' salary was granted after considering section 49(4) factors, the circumstances of termination and length of service.
Legal principles established
#- Burden of proving unfair termination rests on the employee, while the burden of justifying grounds for termination rests on the employer (section 47(5) Employment Act)
- Termination during sick leave without a termination letter, with stopped salary and unfulfilled promises to recall, is unfair
Court orders
#- 1.Payment in lieu of untaken leave for 84 days being Kshs.28,560/= awarded
- 2.One month's salary in lieu of notice of Kshs.10,200/= awarded
- 3.Service pay at 15 days per year worked, Kshs.20,400/= awarded
- 4.Compensation of 12 months' salary in the sum of Kshs.122,400/= awarded
- 5.Decretal sum to attract interest at court rates from date of judgment
- 6.Claimant awarded costs of the case
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction (Employment Act, sections 28, 35(5), 47(5), 49); claim of unfair termination and terminal dues
Relief refused
#Leave pay for 4 years as computed by the Claimant (Kshs.40,800/=)
Leave is provided at 21 days per year worked; awarded at 84 days, not the amount claimed
Service gratuity as claimed (Kshs.24,480/= at 18 days per year)
Awarded as service pay under section 35(5) at 15 days per year, i.e. Kshs.20,400/=
Costs
The Claimant shall also have costs of this case.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I find that the termination of the Claimant’s employment was due to ill health and not absconding duty or use of abusive language as alleged in the Response to the Memorandum of Claim.
He was not issued with a letter of termination. The termination was therefore unfair.
The decretal sum shall attract interest at court rates from date of judgment.
The Claimant shall also have costs of this case.
Issues in the judgment
#The witness David Owuor is described in the judgment both as a data clerk and as the Assistant Administrator Robert Owuor sent to the Claimant, raising possible inconsistency in the identity of the Respondent's witnesses
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fredrick Wandera Orubia v Nairobi Aviation College [2014] KEELRC 1487 (KLR)", Case Analysis (2014). Memorandum of Claim dated 5th September 2011, filed 8th September 2011 (Industrial Court/ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1487/eng@2014-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.