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Citation
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Judgment date
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| August 2023 |
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Leave to appeal granted because a final determination on jurisdiction is required before further proceedings.
Industrial Court jurisdiction; leave to appeal; oral applications for leave competent; threshold of real prospect of success; jurisdictional questions may warrant leave to appeal before further proceedings.
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31 August 2023 |
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Court allowed amendment to add unlawful/illegal termination declarations, holding mediation disclosures confidential and awarding costs to the respondent.
Industrial/Employment law – amendment of pleadings – Order 6 Rule 19 CPR – whether amendment introduces new cause of action – mediation confidentiality under Judicature (Mediation) Rules 2013 – prejudice, delay and costs.
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30 August 2023 |
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29 August 2023 |
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Leave to appeal on questions of fact granted where applicant showed the Labour Officer’s evaluation of evidence and omitted remedies warranted appellate review.
Employment law – leave to appeal on questions of fact under Section 94(2) Employment Act – threshold: factual issues must have formed part of the Labour Officer’s decision and reasons given for re-arguing them on appeal. Civil procedure – effect of failure to file an affidavit in reply – applicant’s evidence stands unchallenged though respondent may address points of law; new evidence from the Bar not admitted on application for leave. Labour arbitration – evaluation of evidence and omission to pronounce on remedies – may constitute questions of fact or mixed law and fact warranting leave to appeal.
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29 August 2023 |
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Applicant granted leave to appeal on factual/mixed issues where the Labour Officer allegedly failed to evaluate evidence and pronounce on reliefs.
Employment law – leave to appeal to Industrial Court – section 94(2) Employment Act – appeal on questions of fact or mixed law and fact. Civil procedure – failure to file affidavit in reply – effect of unchallenged evidence and limitation to points of law. Evidence – evaluation of evidence by Labour Officer – omission to pronounce on reliefs as ground for appeal. Appeals – admission of additional/new evidence on appeal – conditions under Order 43 Rule 22 CPR.
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29 August 2023 |
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The claimant’s mutual termination upheld; awarded severance and terminal benefits but denied other damages.
Employment law – section 71 Employment Act – Labour Officer’s discretion to entertain complaints out of time; Mutual termination and effect of a signed termination letter; Jurisdiction of employer during notice period and disciplinary powers; Admission of misconduct and effect on need for disciplinary proceedings; Entitlement to severance under employer’s Human Resources Manual – calculation of severance; Requirement for strict proof of special damages.
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23 August 2023 |
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Redundancy termination without following CBA and statutory procedure was unlawful; claimant awarded severance, notice pay, damages and costs.
Employment law – collective bargaining – incorporation of Collective Bargaining Agreement into individual contract – redundancy procedure and entitlements under CBA and Employment Act. Termination – redundancy – requirement to give notice to employee/union and notify Labour Commissioner – failure to comply renders termination unlawful. Remedies – pay in lieu of notice, severance (one month per completed year), repatriation allowance, general damages, certificate of service, costs.
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23 August 2023 |
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Employer’s failure to reinstate or communicate after employee’s acquittal amounted to constructive dismissal; remedies awarded.
Employment law – Constructive dismissal – Employer’s unreasonable conduct by failing to reinstate or communicate after employee’s acquittal – breach of mutual trust and confidence. Employment law – Criminal proceedings and employment – employer may await criminal process but must act after acquittal; election to await may lead to constructive dismissal if no steps taken. Remedies – Severance, pay in lieu, basic compensatory pay, salary arrears for period of prosecution, general damages; additional compensation under s.78(2)–(3) is within Labour Officer’s discretion. Interest – monetary awards to carry interest at 19% p.a.; no order as to costs.
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21 August 2023 |
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Court finds termination unlawful and unfair; awards additional severance and general damages, denies discrimination and punitive claims.
Industrial and employment law – Termination of employment – Mutual separation requires free and final consent; lack of consent converts purported mutual termination into unfair dismissal; employer must give notice or follow disciplinary hearing procedures under the Employment Act; acceptance of terminal payments does not necessarily estop employee where acceptance was conditional; claims for future earnings are speculative and generally denied; damages for unfair dismissal include severance and general damages, interest may be awarded; discrimination claims must be proved on the balance of probabilities.
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18 August 2023 |
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An employee’s admitted unauthorised transfer of employer airtime justified summary dismissal; formal hearing not required upon admission.
Labour law – summary dismissal – unauthorised transfer of employer airtime – employee admission dispenses with need for formal disciplinary hearing – breach of duty of fidelity justifying summary dismissal under Employment Act s69(3).
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18 August 2023 |
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A claimant's admission to prohibited conduct justified lawful summary dismissal; the unfair dismissal claim was dismissed.
Employment law – Summary dismissal – Misconduct by carrying unauthorized passenger in employer’s vehicle – Admission of misconduct; Procedural fairness – Right to be heard (Section 66 Employment Act) – Admission may render formal hearing redundant; Summary dismissal justified where conduct constitutes fundamental breach (Section 69 Employment Act); Evidential effect of criminal exoneration – does not negate employment misconduct.
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18 August 2023 |
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16 August 2023 |
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Claimant's dismissal substantively justified but procedurally unfair, resulting in compensation, severance and damages.
Labour law – unfair dismissal; procedural fairness – contents of disciplinary notice, right to be accompanied, and provision of investigation/audit report; substantive fairness – employer's genuine belief and disciplinary findings; remedies – compensation, severance, notice pay, general damages, repatriation and interest.
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16 August 2023 |
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Court authorised substituted service by publication where respondents were evasive and counsel refused to accept service.
Substituted service – Order 5 Rule 18 CPR – requirement that ordinary service be impossible – process server’s affidavit – evasive respondents – Advocates (Professional Conduct) Regulations (notice to withdraw) – inherent powers of the court – substituted service by publication – ex parte proceedings – costs.
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16 August 2023 |
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Applicant granted leave to amend claim to include recovered monies; Industrial Court may adjudicate related employment monetary disputes.
Civil procedure – Amendment of pleadings – Leave to amend to enable determination of real controversy – Principles from Okello Wilbert v Obel Ronald. Labour law – Industrial Court jurisdiction – Power to adjudicate employment-related monetary claims arising from a labour dispute. Limitation – Defence remains available and may be determined at trial; does not automatically bar amendment. Amendment – Allegations of mala fides and prejudice must be established; absence of such findings supports granting leave.
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16 August 2023 |
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Summary dismissal for alleged restructuring was unlawful; claimant awarded terminal pay, severance, general and aggravated damages, interest.
Employment law – unfair and unlawful dismissal – restructuring/merger defence – employer must prove genuine reason, notify Commissioner and affected employees, and afford opportunity to be heard; failure renders termination substantively and procedurally unlawful. Terminal benefits – employer must prove lawful offsets for advances; absence of proof entitles employee to payment. Commission and allowance claims – claimant must prove completed sales and entitlement; vague or unallocated sales records fail. Remedies – payment in lieu of notice, severance, general and aggravated damages, and interest.
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7 August 2023 |
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Applicants granted leave to amend termination claim; amendment not a new cause of action; mediation confidentiality upheld; costs to respondent.
Labour law – amendment of pleadings under Order 6 Rule 19 CPR; whether proposed amendment introduces new cause of action; mediation confidentiality (Judicature (Mediation) Rules 2013) and admissibility of mediation communications; timeliness and non‑compliance with court filing directions; mala fides and prejudice as grounds to refuse amendment; costs awarded to respondent.
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3 August 2023 |