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ELRCPartially AllowedMemorandum of Claim filed 14th May 2013· [2015] KEELRC 280 (KLR)

Robert Kimutai Korir v Kenya Commercial Bank Ltd [2015] KEELRC 280 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
23 October 2015
1,765 words in judgment
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The bottom line

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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

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Executive summary

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The claimant, employed by the respondent bank since 1998 and earning Kshs.99,838 at dismissal, claimed his July 2011 termination was unfair, wrongful and illegal. He had failed to resume duty on 18th May 2010 after approved leave, attributing his absence to stress-induced illness arising from a loan whose terms were changed midstream. He sought a declaration of unfair termination, reinstatement or alternatively notice pay and twelve months' salary. The respondent maintained that the claimant absconded from 18th May 2010 without communication despite letters and phone calls, was removed from the payroll for desertion with effect from 7th June 2010, and was lawfully dismissed for gross misconduct under sections 44(4) and 30(2) of the Employment Act. The Court found the respondent initially had valid and justifiable reason to terminate for desertion. However, letters from the claimant's elder brother and the claimant's appeal revealed he had been suffering from anxiety neurosis and depression, material facts unknown to the employer at dismissal but known by the appeal. The Court held the refusal to reconsider the dismissal on appeal in that light was unfair. It converted the desertion dismissal into a normal contractual termination, entitling the claimant to salary in lieu of notice, exit benefits and allowances, and awarded eight months' salary as compensation for unfair dismissal, with costs to the claimant. Judgment delivered at Nairobi on 23rd October 2015 by Abuodha J. N.

Key legal issues

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01

Desertion as a ground for summary dismissal

Holding

The respondent initially had valid and justifiable reason to terminate for desertion given over one month of unauthorised absence with no communication

Reasoning

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.

p. 3
02

Fairness of the refusal to reconsider dismissal on appeal

Holding

The refusal to reconsider the dismissal on appeal in light of the claimant's depression was unfair

Reasoning

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.

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03

Appropriate remedy

Holding

The desertion dismissal was reduced to normal termination with notice pay, exit benefits and eight months' salary as compensation for unfair dismissal

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The claimant's termination on account of desertion reduced to normal termination as per his contract of service
  2. 2.Payment of salary in lieu of notice as per his contract of service
  3. 3.Payment of any other exit benefits and allowances he would have been entitled to on normal termination
  4. 4.Eight months' salary as compensation for unfair dismissal
  5. 5.Costs to the claimant

Authorities

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Legislation

  • Employment Actsection 30(2)
  • Employment Actsection 44(4)
Jurisdiction invoked
Original jurisdiction of the Industrial Court over employment and labour relations disputes

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, "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.