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ELRCPartially AllowedCause 260 of 2014· [2015] KEELRC 200 (KLR)

W W W v Telkom Kenya Limited [2015] KEELRC 200 (KLR)

Employment and Labour Relations Court of Kenya
13 November 2015
OMOnesmus Makau
852 words in judgment
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The bottom line

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A Kenyan court ruled that an employer who knowingly dismisses a long-serving mentally ill employee must instead retire them on medical grounds with full dues.

What this practically means

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Executive summary

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The claimant, a person of unsound mind suing through his brother and next friend, was employed by Telkom Kenya Limited as a clerical officer on 28.2.1985 at a monthly salary of Ksh 22,705. He suffered recurrent mental illness from 1990, was admitted at Nyeri Provincial General Hospital in October 2002, and was dismissed on 29.5.2003 on grounds of desertion. The claimant's case, supported by the testimony of his next friend and Dr. Eric J Maina, who diagnosed Bipolar disorder, was that the respondent knew of his illness and should have retired him on medical grounds rather than summarily dismissing him. The respondent filed a defence denying liability, asserting the claimant deserted duty and ignored a show-cause letter, but called no witnesses at the hearing on 7.5.2010. The court found the claimant's evidence unrebutted and proved on a balance of probability: he had responded to the demand letter enclosing medical notes. The court held summary dismissal was too harsh for a mentally ill employee of 17 years' service and declared the dismissal wrongful, reducing it to a retirement on medical grounds. Retirement dues per the employment contract and the dismissal letter were ordered payable, plus one month's salary in lieu of notice (Ksh 22,705). Salary for the period after 8.10.2002 was refused for lack of evidence of work or sick leave, and the claim for leave and education shares of Ksh 21,600 failed as unproved. The claimant received costs plus interest from the date of filing suit.

Key legal issues

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01

Whether the summary dismissal of a mentally ill employee of 17 years' standing was wrongful

Holding

The dismissal was wrongful and too harsh; it was reduced to retirement on medical grounds

Reasoning

The claimant produced unrebutted evidence that he suffered from Bipolar disorder and had been admitted to hospital. He responded to the show-cause letter enclosing medical notes. The court held that a valid medical reason warranted retirement rather than summary dismissal, and that the respondent could still have terminated by notice or on medical grounds after a Medical Board certificate.

p. 2
02

Whether salary for the post-dismissal period was payable

Holding

Refused; no evidence the claimant returned to work or was on sick leave after 8.10.2002

Reasoning

The court found no proof the claimant worked or was granted sick leave after 8.10.2002, so no salary accrued for that period. However, one month's salary in lieu of notice was awarded because the dismissal itself was found wrongful.

p. 2

Legal principles established

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  • An employer aware of an employee's mental illness should retire the employee on medical grounds rather than dismiss them summarily; summary dismissal of a long-serving mentally ill employee is too harsh
  • Unrebutted evidence of a claimant is sufficient to prove a case on a balance of probability where the respondent adduces no evidence

Court orders

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  1. 1.Declaration that the dismissal of the claimant was wrongful and is reduced to a retirement on medical grounds
  2. 2.Respondent directed to pay or cause to be paid the claimant's retirement dues according to his employment contract and as undertaken vide the dismissal letter dated 29.5.2003
  3. 3.Respondent to pay the claimant Ksh 22,705 being one month's salary in lieu of notice
  4. 4.Claimant awarded costs of the suit plus interest from the date of filing the suit
Jurisdiction invoked
Employment and Labour Relations Court, Cause 260 of 2014 (claim originally filed in the High Court on 24.5.2004 and transferred/proceeding in the ELRC)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "W W W v Telkom Kenya Limited [2015] KEELRC 200 (KLR)", Case Analysis (2015). Cause 260 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/200/eng@2015-11-13

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