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ELRCDismissedNot stated in the judgment· [2015] KEELRC 727 (KLR)

P O O v Nairobi City County [2015] KEELRC 727 (KLR)

Employment and Labour Relations Court
7 July 2015
1,719 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, an employee of the Nairobi City Commission since 14th September 1988, was summarily dismissed by letter dated 1st August 2011 after being absent from work for about 14 months. He alleged that he fell ill around June 2010, was diagnosed with HIV-AIDS and Tuberculosis in 2010/2011, and that his dismissal was unfair, unprocedural and discriminatory on grounds of health status contrary to Article 41 of the Constitution and the Employment Act. He sought general damages for discrimination of Kshs 3,000,000, one year's salary as damages for unfair dismissal, retained salary for 27 months and 12 months respectively, leave pay, pay for untaken leave days, reinstatement or payment for remaining years of service, and aggravated damages. The respondent did not file a response and did not attend the hearing, which proceeded ex parte on 9th October 2014, though it later filed written submissions through counsel. The court identified two issues: whether the dismissal was unlawful and whether the claimant was entitled to the prayers. The court held that under Sections 30 and 44 of the Employment Act, absence on grounds of illness is excusable only if the employer is notified as soon as reasonably practicable, supported by a medical certificate. The claimant never notified the employer of his illness during the entire absence, first raising it only in his appeal after dismissal. His failure to notify amounted to a fundamental breach of his contract justifying summary dismissal, and the discrimination claim failed because the employer was unaware of his illness. The leave pay prayers failed for want of evidence. The entire claim was dismissed with no orders for costs.

Key legal issues

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01

Whether the summary dismissal of the claimant for absconding duty was lawful

Holding

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.

Reasoning

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.

p. 3
02

Whether the claimant was discriminated against on grounds of his health status (HIV-AIDS)

Holding

No discrimination was established because the employer was unaware of the claimant's illness at the time of dismissal.

Reasoning

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.

p. 3
03

Whether the claimant was entitled to the remedies sought, including leave pay

Holding

The claim failed in its entirety; the leave-related prayers were additionally unproved for want of evidence.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The claimant's entire claim is dismissed
  2. 2.No orders for costs

Authorities

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Legislation

  • Employment ActSection 30
  • Employment ActSection 34(3)
  • Employment ActSection 44
  • Employment ActSection 44(3)
  • Employment ActSection 44(4)(a)
  • Constitution of Kenya, 2010Article 41
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act, 2007; Article 41 of the Constitution invoked in the claim)

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, "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.