11.Although the dispute included a claim for unfair redundancy of five (5) employees, the Respondent indicated through its defense that the impugned redundancy notices were withdrawn. Importantly, this claim was not pursued by the Claimant. It is therefore deemed as having been abandoned following the withdrawal of the contested redundancy notices.
12.On issues numbers one (1) and two (2) above, these were distinct claims by the Claimant in its capacity as a Trade Union. By these claims, the Claimant averred that the Respondent had denied it recognition and refused to implement deduction of Trade Union dues for the benefit of the Claimant.
13.In order to establish these two claims, the Claimant was required to provide evidence to substantiate the averments in its pleadings. It was expected that the Claimant would call one or more of its representatives to speak to these matters. However, this was not done. None of the Claimant’s representatives wrote a witness statement on the two issues or attended court to testify on them.
14.The Claimant called only Ephraim Baraza who spoke to the issue of his alleged unlawful termination from employment. This individual, being an employee of the Respondent and not an official of the Claimant could not speak to the question of recognition of the Claimant by the Respondent or failure by the Respondent to deduct and remit union dues to the Claimant.
15.In effect, although the Claimant raised the two issues of recognition and failure to deduct and remit union dues in its pleadings, it failed to call a competent witness to speak to the two matters. During cross examination of the defense witness, he denied that the Claimant had submitted a recognition agreement to the Respondent which it had failed to sign. The witness further denied that the Claimant had submitted a request for deduction of Union dues which the Respondent had failed to honour.
16.The Claimant failed to adduce evidence to establish its case in respect of the two matters. The documents that were produced by Ephraim Baraza who was incompetent to speak to the two issues were not supported by testimony by a representative of the Claimant. In the premises, these two claims must fail for want of proof.
17.The next issue relates to whether Ephraim Baraza’s contract of service was unlawfully terminated by the Respondent. Section 47 of the Employment Act places the burden of establishing the unlawfulness of the decision to terminate a contract of service on the employee. At the same time, this provision of statute places the burden of justifying the decision to terminate a contract of service on the employer.
18.In effect, the employee must provide preliminary evidence to establish the fact that there has been termination of his contract of service and that the decision to terminate the contract is, prima facie, irregular. It is only after this has happened that the employer is required to justify the decision to terminate the contract. Thus, whilst the overall burden of justifying the decision to end an employment relation rest with the employer, the employee is not entirely absolved of the obligation to make a prima facie case in support of his claim for unfair termination.
19.In the Statement of Claim, it was alleged that Ephraim Baraza was released from employment without the benefit of a hearing. However, the exact date of termination of this employee’s contract of service was not given.
20.The pleadings filed by the Claimant do not suggest that Ephraim Barasa’s case was one of irregular redundancy. Yet, in evidence, the witness (Ephraim Barasa) tried to paint the picture of having been a victim of unfair redundancy. In effect, he was attempting to prove a case that was not anchored on the Claimant’s pleadings.
21.From the documents that were tendered in evidence, it is evident that the issue of Ephraim’s termination from employment was reported to the Ministry of Labour as a trade dispute. The report was made by the Claimant through its letter of 23rd December 2020.
22.There is evidence that the Ministry acknowledged receipt of the dispute via its letter of 26th January 2021. In the letter, the Ministry asked the parties to file their representations on the dispute.
23.Before the Ministry wrote its letter of 26th January 2021 asking the parties to make their representations on the matter, the Respondent had already done a letter dated 18th January 2021 to the Ministry on the issue. The letter was apparently triggered by the Claimant’s letter to the Ministry dated 23rd December 2020.
24.The record shows that the Respondent’s letter to the Ministry dated 18th January 2021 was copied to the Claimant. The record further shows that the Claimant received a copy of the said letter on 19th January 2021 and acknowledged it by affixing its stamp on the return copy.
25.In the letter, the Respondent denied having terminated the services of Ephraim. The Respondent stated that it is Ephraim who absconded from duty on 11th December 2020 and efforts to get to him had proved futile. The Respondent stated that Ephraim’s position was still vacant and he was free to resume duty.
26.The Respondent has maintained this position throughout the dispute resolution process. It is worth noting that the position by the Respondent that it had not terminated the services of Ephraim was made known to the Claimant just a month after the employee had left employment.
27.In his testimony, Ephraim asserted that it is untrue that the Respondent had expressed willingness to have him resume duty. Yet, the Respondent’s letter dated 18th January 2021 and which was received by the Claimant on behalf of Ephraim explicitly indicates that the employee was free to resume duty.
28.Having regard to the foregoing, I am convinced that the Respondent did not terminate the services of Ephraim Baraza. Further, I am convinced that despite efforts to have him resume duty, the said employee has deliberately chosen to keep off duty for reasons that are best known to him. Since the Respondent has expressed willingness to have him back, I believe that the best order that I can issue in the circumstances is to require the parties to resume their active employment relation.