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ELRCPartially AllowedCause No. 1490 of 2013· [2016] KEELRC 2 (KLR)

Stephen Musyoka Katiku v Orbit Enterprises Limited [2016] KEELRC 2 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
3 November 2016
2,363 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 awarded a dismissed worker only one month's notice pay, ruling that ambiguous letters cannot be treated as resignations and unpaid compensation for misconduct.

What this practically means

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Executive summary

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The claimant, employed by the respondent (which he said from 2006 as a carpenter; the respondent said from 2010 as a labourer), sued for wrongful dismissal following events of 15th May 2013. He testified he was sent out with his supervisor Harish to fit doors for a client, worked until 4pm, and on return found his job card unsigned. The respondent asserted he absented himself from work on 15th May 2013, was directed by letters of 17th and 18th May 2013 to explain in writing, refused to do so, and instead on 21st May 2013 submitted a letter demanding his service pay, which the respondent treated as a resignation. The court held that work attendance and signing of the job card by two designated officers was the employee's own duty; with only one signature, the claimant was absent from work. Absence without authorisation is a ground for summary dismissal under section 44(4) of the Employment Act. However, the court declined to treat the 21st May 2013 letter as a valid resignation: it was ambiguous, hazy, merely demanded dues, and was not accepted by the respondent; the employer should have called the claimant to explain or addressed the absence procedurally under section 41 of the Employment Act. Reinstatement was refused (not an exceptional case, poor disciplinary history) and compensation refused because the claimant's failure to give a written explanation was serious gross misconduct. Notice pay of one month's salary was awarded under section 35 of the Employment Act, overriding the contract's sub-minimum notice clause; the claim for the unexpired term to age 60 was declined. Judgment was entered for the claimant for Kshs.13,995.00 being basic pay inclusive of house allowance.

Key legal issues

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01

Whether the claimant was absent from work on 15th May 2013

Holding

The court found the claimant absent because his job card was not signed by the two officers (Harish and Hajit) required to confirm attendance; attendance is the employee's own duty.

Reasoning

The claimant's own testimony established that his job card had to be signed by two officers, Harish and Hajit, to confirm attendance, but only Harish signed. The court held that confirmation of attendance rests on the job card logging and approval, a duty on the employee at all material times. Where the card is not signed as required, the employee is taken to be absent, and the failure cannot be visited on the employer.

p. 3
02

Whether the letter of 21st May 2013 amounted to a resignation

Holding

The court declined to treat the letter as a valid resignation because it was ambiguous, merely demanded service pay, and was not accepted by the respondent; the respondent should have addressed the absence issue procedurally.

Reasoning

The letter produced by the respondent merely requested payment of service dues citing miscommunication, without addressing termination. The claimant insisted his intention was not to resign. The court found the circumstances hazy and ambiguous, noted the supposed resignation was not accepted by the respondent, and held the employer should have called the claimant to explain himself rather than sit back and treat the letter as a resignation, thereby encouraging the filing of the suit.

p. 4
03

Whether the claimant deserved reinstatement or compensation

Holding

Reinstatement was declined as not an exceptional case and given the claimant's poor disciplinary history; compensation was declined because his failure to explain his absence in writing as directed was a serious offence under section 44(4) of the Employment Act.

Reasoning

Under section 45(5) of the Employment Act the court must consider circumstances and past disciplinary history; the respondent produced a warning for absenteeism. Absence from work without authorisation warrants summary dismissal under section 44(4). Instead of explaining his whereabouts on 15th May 2013 as twice directed in writing, the claimant demanded service pay, which the court equated with gross misconduct not deserving compensation.

p. 4
04

Whether notice pay was due

Holding

Notice pay of one month's salary was due under section 35 of the Employment Act, since there was no acceptance of the alleged resignation and the contractual notice clause fell below the legal minimum.

Reasoning

The respondent's witness testified that terminal dues were paid but did not set out what those dues were. Noting there was no acceptance of the alleged resignation, the court found notice pay due at one month's salary under section 35 of the Employment Act, overriding clause 4 of the employment contract which set a notice period below the statutory minimum. This informed the award of Kshs.13,995.00.

p. 4

Legal principles established

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  • Work attendance and ensuring the job card is signed as required is the duty of the employee, not the employer
  • Where an employee's response is ambiguous and does not directly amount to a resignation, an employer should not simply treat it as a resignation but should call the employee to explain or address the issue procedurally
  • An employer must explain all processes and procedures required at work in a language the employee can understand, per section 41 of the Employment Act

Court orders

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  1. 1.Judgment entered for the claimant for the payment of Kshs.13,995.00 being basic pay inclusive of house allowance due

Authorities

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Legislation

  • Employment Actsection 44(4)
  • Employment Actsection 44(3)
  • Employment Actsection 41
  • Employment Actsection 45(5)
  • Employment Actsection 35

Cases cited (3)

  • Paul Chitechi Mwaro versus Sasini Limited and Another
    Cause No.364 of 2013 (Nakuru)
  • Pelecium Olum versus EPZ Authority
    [2014] eKLR
  • Fredrick Saindi Amolo versus Principal, namanga Mixed Secondary School & Others
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the Employment and Labour Relations Court Act (first-instance employment cause)

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, "Stephen Musyoka Katiku v Orbit Enterprises Limited [2016] KEELRC 2 (KLR)", Case Analysis (2016). Cause No. 1490 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/2/eng@2016-11-03

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