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ELRCPartially AllowedCause Number 364 of 2013· [2015] KEELRC 857 (KLR)

Mathew Sila Kimeu & Nyali Children Hospital [2015] KEELRC 857 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
26 June 2015
JRJames Rika
5,154 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan hospital lawfully fired a worker for missing his shift without written permission, but won only partly because it skipped the mandatory hearing process.

What this practically means

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Executive summary

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The Claimant, a Clinical Officer employed by the Respondent hospital on 9th January 2012 and confirmed on 1st October 2012 on a two-year renewable contract with a consolidated monthly salary of Kshs. 50,000, was dismissed on 19th August 2013 after failing to report for his night shift at the Likoni Branch on 17th August 2013. He claimed he had obtained verbal permission from the Director, Dr. Abuto, to attend a welfare group meeting following deaths in his family; the Respondent maintained he absconded duty without leave, forcing the Branch to close for the night and turn patients away. The Court found the Respondent's evidence weightier: the Duty Rota strictly governed Clinical Officers, prior off-day requests had always been in writing, and the Claimant failed to secure a reliever before leaving. Termination was therefore substantively justified under Sections 43 and 45 of the Employment Act 2007. However, the procedure was fatally flawed: no charges were laid, the Claimant was never heard, and he was simply handed a sealed termination letter. The Court awarded him 3 months' gross salary (Kshs. 150,000) as compensation under Section 49 and ordered re-issue of an amended Certificate of Service under Section 51. All monetary claims for anticipatory salaries, severance pay, service pay, gratuity, ex-gratia, additional leave pay and notice pay were rejected, notice pay having already been paid. There was no order on costs and interest. The Award followed the Court's own decision in Daniel Sirengo Wakhungu v. Sawa Sawa Academy.

Key legal issues

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01

Substantive justification for termination under Sections 43 and 45

Holding

The Claimant's absence from the night shift on 17th August 2013 without written authorisation was a valid reason justifying termination.

Reasoning

The Duty Rota governed Clinical Officers' working hours, and departure from it required written communication. The Claimant's previous off-day requests were all in writing, and he did not explain why a one-day absence should be treated differently. His efforts to secure relievers (Gilbert and Marylyn) failed, yet he left anyway, the hospital could not operate at full capacity, and patients were turned away. The Court found the Respondent's evidence weightier.

p. 6
02

Procedural fairness under Sections 41 and 45

Holding

The termination was procedurally flawed because the Claimant was not heard before the decision.

Reasoning

The Claimant returned to duty on 18th August 2013 and was handed a sealed termination letter on 19th August 2013 without being told its contents. There were no charges, no show-cause requirement, no disciplinary panel and no hearing. Respondent's Witness Jane conceded the termination letter issued before any engagement with the Claimant. This fell below the statutory minimum under Section 41, entitling him to compensation under Section 49.

p. 7
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Appropriate compensation under Section 49

Holding

The Claimant was awarded 3 months' gross salary (Kshs. 150,000) as compensation, despite substantive justification for termination, because procedure was unfair.

Reasoning

The Court exercised its discretion under Section 49 having found procedural fault. It rejected the claim for 14 months' anticipatory salaries for the unexpired contract because the termination was substantively justified and the Claimant rendered no labour for that period. It also gave weight to the Claimant's conduct, including what it viewed as dishonest persistence in claiming notice pay already received.

p. 7
04

Certificate of Service under Section 51

Holding

The Respondent must re-issue an amended Certificate of Service with correct dates and the correct title.

Reasoning

Section 51 of the Employment Act entitles the employee to a Certificate of Service. The Respondent conceded the document issued later bore a typographical error and expressed readiness to correct and re-issue it. The Court ordered re-issue of the amended certificate within 30 days of the Award.

p. 8

Legal principles established

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  • An employee seeking to be away from duty, even for one day, must obtain authorisation in accordance with the employer's written request procedures, particularly in institutions such as hospitals that operate through written communication.
  • Termination without notice of charges, a show-cause opportunity or a disciplinary hearing fails the minimum procedural fairness threshold under Section 41 of the Employment Act and attracts compensation under Section 49.
  • A benefit already conferred on an employee by the employer will not be withdrawn by the Court, even if the employer had no obligation to confer it.

Court orders

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  1. 1.Termination of the Claimant's contract was on valid ground, but procedurally flawed
  2. 2.The Respondent shall, within 30 days of the delivery of the Award, pay to the Claimant 3 months' gross salary at Kshs. 150,000 in compensation for unfair termination
  3. 3.Amended Certificate of Service be re-issued to the Claimant within the same period
  4. 4.No order on the costs and interest

Authorities

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Legislation

  • Industrial Court (Procedure) Rules 2010Rule 27(1)(a)
  • Employment Act 2007Section 35
  • Employment Act 2007Section 35(6)
  • Employment Act 2007Section 40
  • Employment Act 2007Section 41
  • Employment Act 2007Section 43
  • Employment Act 2007Section 44(1)(a)
  • Employment Act 2007Section 45
  • Employment Act 2007Section 47
  • Employment Act 2007Section 49
  • Employment Act 2007Section 51

Cases cited (1)

  • Daniel Sirengo Wakhungu v. Sawa Sawa Academy
    [2014] e-KLR
Jurisdiction invoked
Industrial Court (Procedure) Rules 2010, Rule 27(1)(a); Employment Act 2007

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, "Mathew Sila Kimeu & Nyali Children Hospital [2015] KEELRC 857 (KLR)", Case Analysis (2015). Cause Number 364 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/857/eng@2015-06-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.