Benjamin Maundu Syanda v Telkom Kenya Limited [2020] KEELRC 572 (KLR)
The bottom line
#Kenya's Employment Court ruled that a Telkom Kenya employee was summarily dismissed, not made redundant, so he lost claims for severance pay and other terminal dues.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant's employment ended through redundancy or summary dismissal
There was no redundancy; the employment ended through summary dismissal on 6th December 2018 for negligence of duty and insubordination, which was lawful and justified
The general notice of intended redundancy of 26th October 2018 affected over 500 employees but no individual notice under section 40(2) was issued to the claimant, and he did not file any subsequent termination-on-redundancy letter. The respondent instead produced a letter of 6th December 2018 summarily dismissing the claimant for failure to obey lawful instructions, failure to respond to notices and failure to attend a disciplinary hearing. Under section 44(4) of the Employment Act, the sanction of summary dismissal was justified.
Burden of proof in a claim of unfair termination
The claimant bore the burden of proving unfair termination under section 47(5) of the Employment Act and failed to discharge it by not filing the alleged redundancy termination letter
Applying Gibson D Mwanjala v KRA and Standard Group Limited v Jenny Luesby, the burden of proving unfair termination rests on the employee. The claimant alleged his employment was terminated on account of redundancy on 3rd December 2018 but did not attach any such termination letter. The court inferred no such letter existed, so the foundation of the redundancy claim failed.
Whether the protection of interests pay under clause 12 of the contract applies to summary dismissal
Clause 12 applies only to termination of employment by notice, not summary dismissal
The court read clause 12 together with clause 11 of the contract, which deals with termination by notice and summary dismissal. Since the letter of the contract is specific and clause 12 only relates to termination from employment, the protection of interests pay was not payable upon a summary dismissal premised on gross misconduct.
Entitlement to payment for days worked in December 2018 and any outstanding leave days
The claimant is entitled to pay for the 3 days worked in December 2018 and payment of any pending leave days, to be tabulated at the shop floor
The respondent failed to produce work records to confirm leave days taken and did not address the claim. Employment ended on 6th December 2018 while the claimant last worked on 3rd December 2018, so the respondent was to pay for days worked or make deductions for paid days not at work, accounting under section 19(1)(c) of the Employment Act.
Legal principles established
#- The burden of proving unfair termination or wrongful dismissal rests on the employee, while the burden of justifying the grounds of termination rests on the employer under section 47(5) of the Employment Act
- An individual notice to the employee under section 40(2) of the Employment Act is a key prerequisite to a claim of redundancy dues
- Severance pay, compensation and notice pay are not available where there was no termination on account of redundancy and where summary dismissal is justified
Court orders
#- 1.The claimant shall attend at the shop floor and where there are any leave days pending, these shall be paid as he is issued with his Certificate of Service
- 2.The respondent shall address and pay for days worked in December 2018 and/or make deduction for paid days not at work, taking into account section 19(1)(c) of the Employment Act
- 3.Save for the claimant's attendance at the shop floor for tabulations of leave days and days worked, the claims made are found without merit and are dismissed
- 4.Each party shall bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (dispute over termination of employment and terminal dues)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin Maundu Syanda v Telkom Kenya Limited [2020] KEELRC 572 (KLR)", Case Analysis (2020). Cause No. 20 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/572/eng@2020-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.