Bernard Gonzale Lando v Mehta Electrical Limited [2015] KEELRC 1328 (KLR)
The bottom line
#A Kenyan court ruled that firing a worker because he had tuberculosis was unfair, awarding him 12 months' salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant deserted duty or was summarily dismissed on account of his TB infection
The Court found the Claimant was summarily dismissed on account of his TB and that his absences were not without lawful cause; the desertion story was unconvincing
The Claimant produced medical evidence from Bomu Hospital showing he was on TB treatment, and the Court had no reason to disbelieve his account that Manager Kira told him to leave because he was contagious. The Respondent's warning letter of 24th April 2014 coincided with the Claimant's advocate's demand letter of the same date, suggesting it was fabricated for litigation. The Respondent never invited the Claimant to a disciplinary hearing after 24th April 2014, and Kira opted not to testify.
Procedural fairness under Section 41 of the Employment Act
Termination was unfair for want of due process - no notice, no reasons, no hearing
The Claimant received no warning, no notice, and no reasons were given for termination, and there was no disciplinary enquiry. The Respondent's justifications - illness, supervisors' unwillingness, absenteeism and poor performance - were unsupported by evidence. The Respondent failed to justify termination or demonstrate a laid-down sick reporting procedure.
Employer obligations where an employee has an infectious disease at the workplace
Under the Occupational Safety and Health Act 2007, an employer must ensure a safe workplace, engage health authorities, and act responsibly; the Claimant acted responsibly by disclosing and seeking treatment, while the Respondent stigmatized and dismissed him
Sections 6, 8, 10 and 13 of the Occupational Safety and Health Act place duties on both occupier and employee. The focus should be on protecting other workers while treating the afflicted employee responsibly - the employer should engage the Directorate of Occupational Safety and Health and comply with infectious disease reporting law. The Respondent took no such measures and instead dismissed the Claimant to minimize infection risk.
Legal principles established
#- Where an employee is afflicted with an infectious disease, the employer must engage local health authorities including DOSH, comply with reporting obligations, and must not stigmatize or dismiss the employee to minimize infection risk
- An employer failing to justify termination and denying due process under Section 41 of the Employment Act may be ordered to pay up to 12 months' gross salary compensation
Court orders
#- 1.Declaration that the termination of the Claimant's employment was unfair
- 2.The Respondent shall, within 30 days of the delivery of the Award, pay the Claimant 12 months' gross salary in compensation at Kshs. 186,216; 1 month basic salary in notice pay at Kshs. 13,202; 11 days' salary at Kshs. 6,556; and annual leave pay at Kshs. 14,304 - total Kshs. 220,278
- 3.The Respondent to release the Claimant's Certificate of Service forthwith
- 4.No order on the costs
- Jurisdiction invoked
- Article 162(2) of the Constitution read with the Industrial Court Act, jurisdiction over employment and labour relations disputes; Rule 27(1)(a) of the Industrial Court Procedure Rules 2010 cited for the Award
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bernard Gonzale Lando v Mehta Electrical Limited [2015] KEELRC 1328 (KLR)", Case Analysis (2015). Cause Number 277 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1328/eng@2015-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.