Juma Mwachidudu Mwazarakwe v Rea Vipingo Plantations Limited [2015] KEELRC 633 (KLR)
The bottom line
#A Kenyan court ruled that even when an employee abandons their job, the employer must still make genuine efforts to hear them before firing.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was constructively dismissed
No constructive dismissal was established; the Respondent did not commit fundamental or repudiatory breach of the contract of employment.
The Court found the Respondent reasonably accommodated the Claimant for about six months after his injury, paying salary and hospitalization costs, and offered light duty as medically recommended when it could have retired him on medical grounds. The Claimant abandoned work after being assigned the light duty of pushing the Zegezege trolley. His salary stoppage followed his failure to report, and the Respondent's acts did not evince an intention no longer to be bound by the contract.
Whether termination for desertion was substantively valid
Substantively valid - absconding duty was a valid ground under Sections 43 and 45 of the Employment Act 2007.
The letter of dismissal dated 27th August 2014 stated the ground as 'Absconding Duty'. The Claimant disappeared after being assigned light duty and did not report to Management or the Medics. The Court found this a valid reason for termination under the Employment Act.
Whether the termination procedure was fair
Procedure was not fair; the Claimant is entitled to compensation for unfair termination.
The Respondent posted the show-cause and dismissal letters to a P.O. Box address the Claimant denied was his, while the Claimant and his wife were resident in the Company House within the Factory. No genuine effort was made to trace the Claimant or arrange a hearing as contemplated by Sections 41 and 45 of the Employment Act. Desertion does not relieve the employer of the obligation to hear the employee.
What remedies flow from unfair procedure
Minimal compensation of one month's salary, three months' salary arrears, and 63 days' annual leave pay awarded; notice pay and overtime rejected.
Compensation was mitigated by the wife's employment at the same salary rate and continued Company House accommodation. Salary arrears were limited to June-August under Section 18(4) of the Employment Act. Annual leave was awarded because the Respondent's records did not prove leave was taken, lacking any leave application documents.
Legal principles established
#- Constructive dismissal occurs where an employee is forced to leave his job against his will because of the employer's conduct, the conduct being sufficiently bad that the employee regards himself as unfairly dismissed.
- Where an employee abandons his job, the employer retains the obligation to hear the employee and must make genuine effort to trace the employee and initiate a disciplinary procedure before terminating for desertion.
- Under Section 18(4) of the Employment Act 2007, an employee summarily dismissed for lawful cause must be paid all moneys, allowances and benefits due up to the date of dismissal.
Court orders
#- 1.Declaration that termination of the Claimant's contract did not amount to constructive dismissal
- 2.Finding that the Claimant's contract was terminated on valid ground, but deficient on fair procedure
- 3.Respondent to pay within 30 days of the Award 1 month gross salary in compensation for unfair termination at Kshs. 8,754; 3 months' salary arrears at Kshs. 26,262; and annual leave pay at Kshs. 21,211 - total Kshs. 56,227
- 4.Each party to meet their own costs of the Claim
- Jurisdiction invoked
- Industrial Court jurisdiction under the Industrial Court Act; Award rendered under Rule 27(1)(a) of the Industrial Court Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Plantation And Agricultural Workers Union v Kenya Agricultural & Livestock Research Organization [2016] KEELRC 1043 (KLR)[2016] KEELRC 1043 (KLR)27 Jun 2016
- Kenya Plantation and Agricultural Workers Union v Rea Vipingo Plantations Limited & another [2015] KEELRC 27 (KLR)[2015] KEELRC 27 (KLR)4 Dec 2015applied
Cite this brief
#Cite this brief
Caselaw, "Juma Mwachidudu Mwazarakwe v Rea Vipingo Plantations Limited [2015] KEELRC 633 (KLR)", Case Analysis (2015). Industrial Court Cause Number 433 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/633/eng@2015-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.