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ELRCDismissedCause No. 2170 of 2012· [2013] KEELRC 938 (KLR)

Carolyne Chegero Vereso v Pan Africa Life Assurance Limited [2013] KEELRC 938 (KLR)

Industrial Court of Kenya
17 December 2013
MBMbaru
4,750 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court ruled that an employee who stays home sick without telling her employer can be lawfully dismissed without compensation.

What this practically means

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Executive summary

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The claimant, formerly employed by the respondent insurance company as a customer service officer, sued for unlawful termination claiming service pay of Kshs.249,560.50, compensation of 12 months' salary (Kshs.855,636.00), severance pay of Kshs.21,390.00 and general damages. She was summarily dismissed on 14th September 2012 on grounds of absconding duty, lack of seriousness, lateness and breach of obligations and suspicious conduct, after failing to report to work on 13th and 14th September 2012 while ill. She contended she had sick off chits and that the dismissal was malicious and without a hearing. The respondent maintained the dismissal was justified under section 44 of the Employment Act, that the claimant never submitted the chits for 13th and 14th September, and that she had a history of conduct issues across six departments. The court framed three issues: whether the termination was unfair, entitlement to the remedies sought, and costs. It held that an employee who is unwell must take all reasonable measures to inform the employer, and that the claimant, who was able to text and call her line manager, failed to communicate her whereabouts or submit the sick off chits. Viewed against her prior conduct, including unexplained weekend access to the desk of a colleague sought by the Banking Fraud Unit, the dismissal was justified. Service pay was declined due to NSSF and NHIF registration; severance pay was declined as it applies only to redundancy. The claim was dismissed with no orders as to costs.

Key legal issues

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01

Whether the claimant was unfairly terminated

Holding

The summary dismissal was lawful and not unfair. The claimant absented herself for two days without communicating or submitting her sick off chits, and had serious outstanding conduct issues.

Reasoning

The court found the claimant failed in her duty to inform the employer of her whereabouts on 13th and 14th September 2012 despite being able to do so, as she had texted and called her line manager during that period. The claimant's failure to take reasonable measures to communicate, viewed in the context of her prior conduct issues including unexplained access to a colleague's desk of a person sought by the Banking Fraud Unit, justified summary dismissal under section 44 of the Employment Act.

p. 7
02

Entitlement to service pay

Holding

Declined because the claimant was registered with NSSF and NHIF.

Reasoning

The claimant's pay slip indicated registration with NSSF and NHIF, which under section 35 of the Employment Act excludes entitlement to service pay. The court declined this head of the claim on that statutory basis.

p. 7
03

Entitlement to severance pay

Holding

Declined because severance pay is payable only upon redundancy.

Reasoning

The court held that severance pay attaches to employees declared redundant. Since the claimant was summarily dismissed for misconduct and not declared redundant, this head of claim could not succeed.

p. 7

Legal principles established

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  • An employee who is unwell must take all reasonable measures to ensure the employer is aware of the circumstances, including informal communication such as a phone call, text message or email, before formalizing the sick off.
  • Summary dismissal for absenting oneself from work without leave or lawful cause is justified under section 44(4)(a) of the Employment Act.

Court orders

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  1. 1.The claim is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Employment Actsection 44(4)(a)
  • Employment Actsection 44
  • Employment Actsection 45
  • Employment Actsection 35
  • Employment Actsection 34
Jurisdiction invoked
Employment and labour relations jurisdiction of the Industrial Court of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Carolyne Chegero Vereso v Pan Africa Life Assurance Limited [2013] KEELRC 938 (KLR)", Case Analysis (2013). Cause No. 2170 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/938/eng@2013-12-17

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