P O O v Nairobi City County [2015] KEELRC 727 (KLR)
The bottom line
#A Kenyan court ruled that an employee who never told his employer he was sick could lawfully be dismissed for absconding duty.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal of the claimant for absconding duty was lawful
The dismissal was lawful and justified. The claimant absented himself for about 14 months without leave, without notifying the employer of his illness, and without a medical certificate covering the period of absence.
Section 44(4)(a) permits summary dismissal where an employee absents himself from work without leave or lawful cause. Section 30 of the Employment Act requires notification of incapacity supported by a medical certificate. The claimant never notified the employer until his appeal after dismissal, and his own appeal and review letters contained no explanation for the failure to notify. The absence would have been excusable only with a medical report justifying the whole period.
Whether the claimant was discriminated against on grounds of his health status (HIV-AIDS)
No discrimination was established because the employer was unaware of the claimant's illness at the time of dismissal.
The claimant alleged dismissal on account of his HIV-AIDS status contrary to Article 41 of the Constitution and the Employment Act. However, the court found the employer had no knowledge of the illness before dismissal since the claimant never communicated it. Discrimination on the basis of health status could not arise where the employer lacked knowledge of the condition.
Whether the claimant was entitled to the remedies sought, including leave pay
The claim failed in its entirety; the leave-related prayers were additionally unproved for want of evidence.
Having found the dismissal justified, the court held the claimant not entitled to the main heads of relief. The leave pay prayers failed separately because no evidence was adduced to support them.
Legal principles established
#- An employee's absence on grounds of illness is excusable only where the employer is notified of the incapacity as soon as reasonably practicable, supported by a medical certificate
- Absence from work without permission and without notification of the reason constitutes a fundamental breach of the contract of service justifying summary dismissal under Section 44(3) of the Employment Act
Court orders
#- 1.The claimant's entire claim is dismissed
- 2.No orders for costs
- Jurisdiction invoked
- Employment and labour relations jurisdiction (Employment Act, 2007; Article 41 of the Constitution invoked in the claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "P O O v Nairobi City County [2015] KEELRC 727 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/727/eng@2015-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.