Naibei Gerishom Kisach v National Cereal & Produce Board [2014] KEELRC 233 (KLR)
The bottom line
#A Kenyan court ruled that firing a mentally ill worker for 'desertion' was unfair, because illness is a valid reason for absence under the Employment Act.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal for desertion was unfair where the employee was mentally ill during the alleged absence
The dismissal was unfair under section 43 of the Employment Act, 2007, because the claimant had a valid and lawful reason for absence.
The court found as a fact, on the evidence of the clinical officer (CW3) and treatment records, that the claimant suffered organic psychosis from 16.06.2007 to 18.05.2009, covering the entire period of alleged desertion. Illness was therefore a valid, lawful and reasonable reason for absence, making the employer's reason invalid. It would also be unreasonable to demand medical records from a mentally sick employee. The dismissal thus lacked a valid reason under section 43.
Remedies for unfair termination
Claimant awarded the equivalent of 12 months' pay (Kshs.275,880) as reasonable pay for unfair termination, one month's pay (Kshs.22,990) for salary/sick leave, one month's pay in lieu of notice (Kshs.18,435), retirement with full benefits, and a certificate of service.
Having found the termination unfair, the court exercised its remedial powers: 12 months' pay as compensation for unfair termination; one month's pay for salary arrears under the sick leave provisions of section 30; statutory one month's pay in lieu of notice under section 35; retirement with full benefits in lieu of unquantified gratuity; severance and annual leave refused for lack of evidentiary basis.
Legal principles established
#- It is unreasonable to expect a seriously sick, especially mentally sick, employee to produce medical records to procure permission to be absent on account of ill health.
- An employer dismissing an employee for absence must act on a valid and fair reason under section 43 of the Employment Act; absence due to genuine illness is a valid and lawful reason.
Court orders
#- 1.Declaration that as the termination was unfair, the claimant be retired effective 26.06.2007 with full benefits including dues under provident fund, staff savings scheme and National Social Security Fund as contributed by both parties, to be computed, filed and served by the claimant and quantum recorded on a convenient date within 30 days from the date of judgment
- 2.Respondent to pay the claimant Kshs.317,305.00 by 1.12.2014 failing interest at court rates payable from the date of judgment till full payment
- 3.Respondent to deliver to the claimant the certificate of service by 1.12.2014
- 4.Respondent to pay the claimant's costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Naibei Gerishom Kisach v National Cereal & Produce Board [2014] KEELRC 233 (KLR)", Case Analysis (2014). Cause No 304 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/233/eng@2014-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.