Court awards fired employee Sh1.8m for unfair dismissal

An employee has been granted an award Sh1.8 million by the Employment and Labour Relations Court after a judge found that his dismissal was unfair, unlawful and carried out in breach of statutory procedure.

The matter proceeded as an undefended claim after the employer failed to enter an appearance or file any response despite being served with court documents.

The dispute stemmed from a long employment relationship that the claimant, Evanson Ngiri, said began in June 2000.

He told the court that he was engaged in a technical role within a manufacturing environment, where he was responsible for installing, maintaining and repairing machinery used in production.

Over time, he said, his responsibilities expanded informally to include supervision of other workers and oversight of operations on the production floor.

According to his testimony, his work relationship evolved without formal documentation.

“My terms of employment, including the changes over time, were never reduced into writing,” he told the court, adding that, unlike other employees, he was never issued with a formal contract.

He argued that this amounted to unequal treatment within the workplace.

He further told the court that he lived within the employer’s premises as part of his working arrangement and was frequently called upon to resolve workplace disputes.

At peak, he said, he supervised more than 70 employees and was considered a senior technician in practice, even though this was not formally captured in any official designation.

"This was characterised by residing within the Respondent’s (employer) premises, ensuring the proper functioning and responsible use of machinery and equipment, overseeing more than 78 employees, and resolving disputes between employees related to the Respondent’s operations," the judgment states.

The employee also described a deterioration in salary payments in the later years of his employment.

He stated that while he had initially been paid regularly, this changed from around 2018, when payments became irregular.

“At times I went for more than three months without pay,” he testified, adding that the situation forced him and other workers to seek intervention from labour authorities.

A further issue concerned deductions made from his salary for a cooperative savings scheme.

He told the court that although he had authorised monthly deductions, the amounts were not remitted.

Documentary evidence produced in court showed that the employer had accumulated significant arrears to the cooperative, including letters indicating outstanding amounts of over Sh4.9 million to Sh6.4 million at different points in time.

His personal claim for unremitted deductions stood at Sh202,000.

The employee also testified that in the final months of his employment, he was not assigned any duties but was still required to remain within the employer’s premises.

He said the situation worsened when he was eventually instructed to vacate abruptly.

“I was told to leave immediately, and I was not allowed to take my personal belongings,” he told the court, adding that his items were retained by the employer.

He further stated that his employment ended in November 2024 without notice or explanation.

“I was never given a reason for termination, and I was not called to any hearing,” he testified, arguing that the dismissal was unfair and in violation of the law.

A witness who had worked alongside him for over two decades corroborated key aspects of his account.

The witness told the court that the claimant had worked for the employer since the early 2000s and had lived within the company premises.

“He was a hardworking and reliable employee, and we respected him as a senior technician,” the witness said.

He also confirmed that salary deductions for the cooperative were made but not remitted.

Because the employer did not participate in the proceedings, the court relied entirely on the claimant’s evidence and that of his witness.

The judge noted that the absence of a defence meant the allegations remained unchallenged.

In its determination, the court identified two key issues: whether the termination was unfair and whether the claimant was entitled to the reliefs sought.

On the first issue, the court found that no termination letter or reason for dismissal had been provided.

“The Respondent failed to place before this Court any reason for termination,” the judge stated, adding that without such evidence, the court could not assess whether the dismissal was valid under the law.

The court held that the employer had failed to discharge its burden under Sections 43 and 45 of the Employment Act.

On procedural fairness, the court found no evidence that the employee was subjected to any disciplinary process.

“There is nothing to show that the requirements of Section 41 of the Employment Act were complied with,” the judge noted, referring to the obligation to notify an employee of allegations and allow them to respond.

The court therefore concluded that the termination was both substantively and procedurally unfair.

In terms of remedies, the court awarded Evanson several heads of relief.

It granted 10 months’ gross salary as compensation for unfair termination, amounting to Sh780,360, taking into account his long service of nearly 24 years.

He was also awarded Sh78,036 as one month’s salary in lieu (absence) of notice, and Sh390,180 for unpaid salary covering July to November 2024.

On leave, the court awarded Sh81,937.80 for accrued leave days, limited to 18 months in line with statutory provisions.

The court further ordered refund of Sh202,000 in SACCO deductions that had been made but not remitted.

Notably, the judge also awarded Sh300,000 for violation of constitutional rights, finding that the prolonged non-payment of wages and failure to remit deductions amounted to a breach of the right to fair labour practices under Article 41 of the constitution.

“The Respondent’s actions amounted to unfair labour practice and violated the Claimant’s right to fair labour practices,” the judge stated.

In total, the court awarded the employee Sh1,832,513.80, together with costs and interest.

The employer was also ordered to return the claimant’s personal belongings and issue a certificate of service within 30 days.