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ELRCPartially AllowedAmended Memorandum of Claim dated 30th July 2012· [2015] KEELRC 53 (KLR)

Judith Atieno Omboho v Faith Homes Kenya [2015] KEELRC 53 (KLR)

Employment and Labour Relations Court
18 December 2015
MNMathews Nderi Nduma
1,370 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer who claims an employee absconded must prove it in court, or the dismissal is unfair and compensation follows.

What this practically means

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Executive summary

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The Claimant, a teacher employed by the Respondent Faith Homes of Kenya on 7th January 2009 at a monthly salary of Kshs.9,500, claimed compensation for wrongful and unlawful termination of her employment on 16th September 2010 and payment of terminal benefits, including pay in lieu of notice, unpaid salary for August 2010, fifteen days' salary for September 2010, and leave allowance. She testified that she reported late on 16th September 2010 after informing the head teacher, was asked to clear from school, and was told she would not be paid because she had applied for a job with the Teachers Service Commission. The Respondent denied terminating her, asserting she voluntarily absconded and did not give the required one month's notice. RW1, the Administrative Secretary, admitted the Respondent knew of the TSC application. The court framed two issues: whether the Claimant absconded or was terminated, and whether she was entitled to the reliefs sought. Relying on Section 43 of the Employment Act, the court held the Respondent failed to prove reasons for termination and found the Claimant was summarily dismissed without valid reason or fair procedure, contrary to Sections 43 and 45. She was awarded six months' salary (Kshs.57,000) as compensation plus notice pay, August 2010 salary and September 2010 dues, totalling Kshs.80,750 with interest and costs. The leave claim was dismissed as unproved.

Key legal issues

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01

Whether the Claimant absconded or was terminated

Holding

The court found the Claimant was summarily dismissed by the Respondent, who was not candid about it, and who resented her application to the TSC.

Reasoning

Section 43 of the Employment Act places the burden on the employer to prove reasons for termination. The Respondent only alleged absconding and gave no reasons for termination. RW1 admitted the Respondent knew of the Claimant's TSC application and had reported it. A police report by the Claimant over non-payment of salary further indicated she had been dismissed. The court found summary dismissal without payment of dues.

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02

Whether the termination was unfair

Holding

The summary dismissal was unfair, being without valid reason and without fair procedure.

Reasoning

Failure to pay salary and notice were aggravating factors. The Claimant was given no reason for the dismissal and was not subjected to a disciplinary hearing. The dismissal was contrary to Section 43 as read with Section 45 of the Employment Act, entitling her to compensation under Section 49(1)(c) as read with Section 49(4).

p. 3

Legal principles established

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  • In any claim arising out of termination, the employer must prove the reasons for termination, failing which the termination is deemed unfair under Section 45.
  • A termination must be for a valid reason and effected through a fair procedure, including a disciplinary hearing.

Court orders

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  1. 1.Six months' salary as compensation for wrongful and unlawful dismissal in the sum of Kshs.57,000.00
  2. 2.Payment in lieu of one month's notice of Kshs.9,500
  3. 3.Salary for August 2010 of Kshs.9,500.00
  4. 4.Fifteen (15) days salary for September 2010 of Kshs.4,750
  5. 5.Total award of Kshs.80,750.00 with interest at court rates from date of filing suit till payment in full
  6. 6.Claimant awarded costs of the suit
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Judith Atieno Omboho v Faith Homes Kenya [2015] KEELRC 53 (KLR)", Case Analysis (2015). Amended Memorandum of Claim dated 30th July 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/53/eng@2015-12-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.