Robert Kimutai Korir v Kenya Commercial Bank Ltd [2015] KEELRC 280 (KLR)
The bottom line
#A Kenyan bank's dismissal of an employee for desertion stood, but refusing to reconsider after learning he had depression made the dismissal unfair.
What this practically means
#Executive summary
#Key legal issues
#Desertion as a ground for summary dismissal
The respondent initially had valid and justifiable reason to terminate for desertion given over one month of unauthorised absence with no communication
The claimant failed to resume duty on expiry of approved leave on 18th May 2010 and made no communication about his whereabouts. The respondent made efforts to contact him by phone and by letters, removed him from the payroll and recommended dismissal after about a month. On these facts the initial decision to terminate was justified.
Fairness of the refusal to reconsider dismissal on appeal
The refusal to reconsider the dismissal on appeal in light of the claimant's depression was unfair
By the time the claimant appealed, letters from his elder brother and medical information indicated he had been suffering from anxiety neurosis/depression. These were material facts which, if known earlier, might have led to a different decision. The Court held the employer should have weighed this in the appeal.
Appropriate remedy
The desertion dismissal was reduced to normal termination with notice pay, exit benefits and eight months' salary as compensation for unfair dismissal
Because the unfairness lay in the refusal to reconsider on appeal rather than the initial decision, the Court tailored relief by converting the desertion dismissal to a normal contractual termination, carrying contractual notice and exit benefits, plus compensation of eight months' salary.
Legal principles established
#- An employer who receives information that an employee may have been suffering from a mental condition at the time of dismissal for desertion ought to consider that information on appeal before maintaining the dismissal.
- While the length of unauthorised absence is immaterial, every desertion case must be decided on its own circumstances.
Court orders
#- 1.The claimant's termination on account of desertion reduced to normal termination as per his contract of service
- 2.Payment of salary in lieu of notice as per his contract of service
- 3.Payment of any other exit benefits and allowances he would have been entitled to on normal termination
- 4.Eight months' salary as compensation for unfair dismissal
- 5.Costs to the claimant
- Jurisdiction invoked
- Original jurisdiction of the Industrial Court over employment and labour relations disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Robert Kimutai Korir v Kenya Commercial Bank Ltd [2015] KEELRC 280 (KLR)", Case Analysis (2015). Memorandum of Claim filed 14th May 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/280/eng@2015-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.