Everline Ashiono v Family Health International (FHI 360) [2021] KEELRC 284 (KLR)
The bottom line
#Kenya's Employment Court allowed an employer to file extra evidence in an unfair termination case, ruling that confidentiality concerns cannot block a defence.
What this practically means
#Executive summary
#Key legal issues
#Leave to file further documents after close of pleadings
The court allowed the respondent to file the further statement and documents, holding that exclusion would impede the defence and the course of justice, and that any confidentiality concerns should be addressed at the hearing rather than used to restrict a defence.
Rule 14(10) of the ELRC (Procedure) Rules, 2016 permits filing of supplementary bundles with leave after close of pleadings. Given the claimant's own case that the termination rested on data falsification allegations concerning the Daily Activity Registers, the work records become necessary. The court found no direct or indirect reference to any identifiable person in the records, and directed that any claim of confidentiality be dealt with at the hearing, not to restrict the defence.
Burden of proof in unfair termination claims
Under section 47(5) of the Employment Act, 2007, the employee bears the burden of proving unfair termination or wrongful dismissal, while the employer must justify the grounds for termination.
The court invoked section 47(5) of the Employment Act, 2007, which places the burden of proving unfairness on the employee and the burden of justifying the grounds for termination on the employer. Because the disciplinary allegations against the claimant concerned the Daily Activity Registers and data submitted to reviewers, those work records were necessary for the respondent to justify the grounds of termination.
Witness summons under section 20(4) of the ELRC Act
The court has power under section 20(4) of the Employment and Labour Relations Court Act, 2011 to require any person to attend, give evidence and produce relevant documents, and a witness summons was directed to issue to the CCC Data Clerk at Nakuru PGH.
The parties are allowed to call any witness, and the court may on its own motion or on application order any person to attend and produce relevant documents under section 20(4) of the ELRC Act, 2011. Since the original registers were said to be held at Nakuru Provincial General Hospital, a witness summons to the CCC Data Clerk to produce the original registers for April to June 2018 was granted.
Legal principles established
#- In a claim of unfair termination or wrongful dismissal, the burden of proving unfairness or wrongfulness lies with the employee, while the burden of justifying the grounds for termination rests on the employer.
- All personal and confidential medical information should be protected against unauthorised disclosure.
Court orders
#- 1.The respondent shall file and serve a further statement of evidence of Emmanuel Ouma
- 2.The respondent shall file and serve the index to the respondent's Bundles of Documents dated 31st May, 2021, the Further Bundle of Documents dated 31st May, 2021, and the seven bundles containing the second set of Daily Activity Registers marked 'DAR 1' to 'DAR 7'
- 3.A witness summons shall issue to the CCC Data Clerk at Nakuru Provincial General Hospital to produce at the hearing the original Daily Activity Registers for CCCs for Nakuru Provincial Hospital for April to June, 2018
- 4.Costs shall abide the outcome of the suit
- Jurisdiction invoked
- Rule 14, 15 and 17 of the Employment and Labour Relations Court (Procedure) Rules, 2016; section 20(4) of the Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Everline Ashiono v Family Health International (FHI 360) [2021] KEELRC 284 (KLR)", Case Analysis (2021). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/284/eng@2021-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.