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ELRCPartially AllowedNot stated in judgment

Onono v Chemartin Tea Company Limited (Cause E013 of 2022) [2023] KEELRC 1053 (KLR)

Employment and Labour Relations Court
28 April 2023
2,135 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan employer couldn't prove an employee absconded, so its firing and pay cut were ruled unfair, costing it over Kshs 1.6 million.

What this practically means

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Executive summary

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The Claimant, employed from 2005 as a Trainee Manager and later promoted to Estate Accountant, sued claiming notice pay, withheld salaries, maximum compensation for unlawful termination, interest, costs and leave pay. He alleged he was laid off for one month from 15th January 2022, then asked to resign at a meeting on 17th February 2022, and when he declined, was escorted out of the premises by security. The Respondent denied terminating him, contending he had been terminated in 2017 and re-employed afresh in 2018, that he had irregularly increased his own salary to Kshs 120,000 (later reduced to Kshs 80,000), and that he resigned or absconded without notice. It counterclaimed for one month's salary in lieu of notice. The Respondent called three witnesses; RW1 conceded that the Claimant was not invited to the meeting at which his salary was reduced and that no show cause letter was issued. The Court found the Respondent failed to prove the Claimant absconded, as no efforts to contact him or warning letters were demonstrated, and held the termination was substantively and procedurally unfair under Section 45(2) of the Employment Act. The salary reduction was found to be without basis. The counterclaim was dismissed. The Court awarded notice pay of Kshs 120,000, withheld salaries of Kshs 830,000, six months' salary as compensation of Kshs 720,000, plus costs; the leave pay claim was disallowed for lack of evidence.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Claimant was terminated unfairly from employment
  2. 2.If so, what reliefs should the Court grant
  3. 3.Whether the Respondent's counterclaim was proved

Key legal issues

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01

Whether the Claimant was unfairly terminated

Holding

The Claimant was terminated unfairly and without procedural fairness within the meaning of Section 45(2) of the Employment Act; the defence of absconding failed because the Respondent adduced no evidence of efforts to contact him or of any warning letter

Reasoning

The Respondent asserted the Claimant absconded after refusing to resign on the Respondent's terms. Following the decision in Simon Mbithi Mbane v Inter Security Services Ltd, an employer alleging abscondment must show efforts to contact the employee. No such efforts were demonstrated, and no warning letter or documentation was tabled. The Court therefore preferred the Claimant's account that he was terminated after refusing to resign, and found the process lacked procedural fairness.

p. 4
02

Whether the reduction of the Claimant's salary was lawful

Holding

The variation and reduction of the Claimant's salary was without any basis

Reasoning

RW1 claimed the Claimant increased his own salary to Kshs 120,000 and that the board later reduced it. However, RW1 conceded that the Claimant was not invited to the meeting where his salary was reduced nor to explain the alleged discrepancy. The Court held the Respondent should have conducted a thorough investigation into what it alleged was gross misconduct, and its casual handling of the matter rendered the salary reduction baseless.

p. 5
03

Whether the Respondent's counterclaim was proved

Holding

The counterclaim, founded on the allegation that the Claimant left employment without notice, was dismissed

Reasoning

The counterclaim rested on the same allegation of abscondment without notice which the Court had already rejected on the evidence. Since the Respondent failed to prove that the Claimant absconded, the foundation of the counterclaim collapsed and judgment was not entered for the one month's salary in lieu of notice sought by the Respondent.

p. 5

Legal principles established

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  • An allegation that an employee has absconded duties calls upon the employer to demonstrate that efforts were made to contact the employee without success

Court orders

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  1. 1.Payment of one month's salary in lieu of notice of Kshs 120,000
  2. 2.Payment of withheld salaries of Kshs 830,000
  3. 3.Six months' salary as compensation for unfair termination of Kshs 720,000
  4. 4.Costs of the suit to the Claimant
  5. 5.Claim for leave pay disallowed
  6. 6.Respondent's counterclaim dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; court not stated expressly in the judgment)

Relief refused

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Leave pay

No evidence was led to prove the claim for leave pay

p. 5

Costs

Costs in the suit awarded to the Claimant

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

An allegation that an employee has absconded duties calls upon an employer to reasonably demonstrate that efiorts were made to contact such an employee without success.
p. 4Employer's burden where abscondment is alleged
Flowing from the above analysis, I find and hold that the Claimant was terminated unfairly and also, that there was no procedural fairness in the process leading to his termination within the meaning of Section 45(2) of the Employment Act.
p. 4Unfair and procedurally flawed termination
the variation and reduction of the Claimant's salary was without any basis
p. 5Unilateral salary reduction
The claim for leave pay is disallowed as no evidence was led to prove them.
p. 5Final orders - refusal of leave pay
These allegations were however not proved and as such, I find that Respondent's counterclaim was not proved and is hereby dismissed.
p. 5Final orders - counterclaim dismissed

Issues in the judgment

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minor

The judgment awards withheld salaries of Kshs 830,000 without any reasoning in the determination explaining how this figure, particularised only in the pleadings, was assessed or verified

minor

The judgment does not state the case number of the suit

minor

Compensation of six months' salary is computed at Kshs 720,000 while one month's salary in lieu of notice is computed at Kshs 120,000, yet RW1 testified the Claimant earned Kshs 80,000, a discrepancy the judgment does not reconcile

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, "Onono v Chemartin Tea Company Limited (Cause E013 of 2022) [2023] KEELRC 1053 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1053/eng@2023-04-28

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