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ELRCPartially AllowedCause No 1685 of 2013· [2015] KEELRC 1324 (KLR)

Abdalla Mohamed Abdalla v Independent Electoral and Boundaries Commission [2015] KEELRC 1324 (KLR)

Employment and Labour Relations Court of Kenya
13 March 2015
2,123 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled IEBC lawfully fired a driver for abandoning duty but unfairly, awarding him over Kshs. 255,000 because it skipped proper disciplinary procedure.

What this practically means

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Executive summary

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The Claimant, a driver employed by the Respondent and its predecessor the IIEC from July 2009, had his employment terminated with effect from 22nd March 2013 on grounds of insubordination and desertion of duty, after he left the official motor vehicle at a Commissioner's home while unwell and sought medical treatment without notifying the Transport Officer. He sued for unfair and unlawful dismissal, seeking reinstatement, notice pay, salary arrears, leave pay and allowance, gratuity, pension release and 12 months' salary as compensation. The court framed three issues: valid reason, procedure, and remedies. On reason, applying Section 43 of the Employment Act, the court accepted the Claimant was genuinely unwell but found he acted without due care in failing to notify his supervisor, so the Respondent had a valid reason for termination. On procedure, however, the court found the Respondent breached Section 41 of the Employment Act and its own internal disciplinary rules, rendering the termination procedurally unfair. On remedies, reinstatement was declined as an exceptional remedy unavailable to an employee with a negative employment record and given the valid reason for termination. The court awarded four months' salary in compensation, one month's notice pay, salary for days worked in March 2013, and prorata leave pay, totalling Kshs. 255,236.00, with interest at court rates. Gratuity and leave allowance claims were dismissed. The Respondent was directed to facilitate release of the Claimant's pension contributions and to bear the costs of the case. The award was delivered on 13th March 2015 by Linnet Ndolo, Judge.

Key legal issues

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01

Valid reason for termination

Holding

The Respondent had a valid reason for terminating the Claimant's employment

Reasoning

The Claimant left the official vehicle and deserted duty without notifying his supervisor, the Transport Officer, despite not being too ill to do so. Given the sensitive nature of his work as driver to a Commissioner, his conduct amounted to acting without due care, satisfying the Section 43 burden on the employer.

p. 4
02

Procedural fairness of termination

Holding

The termination was procedurally unfair for want of compliance with Section 41 and the Respondent's internal disciplinary rules

Reasoning

The Respondent did not explain the reasons for termination to the employee in a language he understands, allow a representative, or hear and consider his explanations as required by Section 41 of the Employment Act, nor did it follow Clause 10.2.5.2 of its own Human Resources Manual entitling the employee to present a defence before disciplinary action.

p. 4
03

Remedies for unfair termination

Holding

Reinstatement declined; compensation of 4 months' salary plus notice pay, salary for days worked and prorata leave pay awarded

Reasoning

Reinstatement is a premier remedy available only in exceptional circumstances and unavailable to an employee with a negative employment record. Since the Respondent had a valid reason and the Claimant's record was poor, the court substituted compensatory relief for reinstatement and awarded proportionate compensation.

p. 4

Legal principles established

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  • The burden imposed on an employer by Section 43 of the Employment Act is to establish a valid reason that would cause a reasonable employer to terminate employment
  • The court does not substitute the employer's decision but examines the reasonableness of the employer's decision in light of the circumstances and applicable law
  • An employee on sick off must notify the employer as soon as practically possible
  • Termination must comply with both Section 41 of the Employment Act and the employer's internal disciplinary rules

Court orders

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  1. 1.Award to the Claimant of Kshs. 176,532.00 being 4 months' salary in compensation for unfair termination
  2. 2.Award of Kshs. 44,133.00 being 1 month's salary in lieu of notice
  3. 3.Award of Kshs. 29,422.00 being salary for days worked in March 2013
  4. 4.Award of Kshs. 5,149.00 being prorata leave pay for 2013, total award Kshs. 255,236.00
  5. 5.Interest on the award at court rates from the date of the award until payment in full
  6. 6.Direction that the Respondent facilitate release of the Claimant's pension contributions under the Retirement Benefits Scheme
  7. 7.Respondent to bear the costs of the case

Authorities

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Legislation

  • Employment Act, 2007Section 43(1)
  • Employment Act, 2007Section 43(2)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 44(c) and (e)
  • Employment Act, 2007Section 12
  • Public Officer Ethics Act, 2003Part III Section 9
  • Independent Electoral and Boundaries Commission Human Resources and Administration Policies and Procedures ManualSection 10.2.5.2 / Clause 10.2.5.2

Cases cited (2)

  • Jessy Olukutukei Vs Feed The Children Kenya & Another
    [2014] eKLR
  • Dr. Joseph Maingi Maitha vs the Permanent Secretary Ministry of Medical Services and Another
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 over a claim for unfair and unlawful termination of employment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Abdalla Mohamed Abdalla v Independent Electoral and Boundaries Commission [2015] KEELRC 1324 (KLR)", Case Analysis (2015). Cause No 1685 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1324/eng@2015-03-13

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