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ELRCPartially AllowedCause (application dated 5th July 2016)· [2016] KEELRC 17 (KLR)

Dorothy Njoki Ndung’u v Machakos University College & another [2016] KEELRC 17 (KLR)

Employment and Labour Relations Court
13 October 2016
MMM. Mbaru
5,257 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employer cannot stop an employee's salary or medical cover during suspension, but the employee must face the disciplinary process.

What this practically means

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Executive summary

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The Claimant, a Teaching Assistant at the 1st Respondent university and UASU branch Secretary General, sought interim orders declaring her suspension and disciplinary process unlawful, quashing the suspension, reinstatement, payment of withheld salaries and restoration of medical cover, a declaration of entitlement to medical leave, and an injunction against termination. She was suspended on 14th June 2016 after absconding duty following her unapproved departure for medical treatment; the Respondents invoked HR Policy section 21.6 to suspend salary and medical cover. The Court framed five issues. It held that reinstatement could not issue at the interlocutory stage as no termination had occurred. On sick leave, it applied section 30 of the Employment Act, holding that sick leave is conditional on a medical certificate and prompt notification of the employer; the Claimant's application was for studies and medical treatment, was never approved, and she failed to attend the disciplinary hearing. The Court found no irregularity in the Respondents' conduct and declined to stay the disciplinary process, directing the Claimant to submit to it unconditionally. However, on the salary and medical cover issue, the Court held that work benefits, especially salary, are rights that cannot be negated by workplace policy, contract or disciplinary action while employment subsists, and declared the Respondent's policy withholding salary during suspension a gross illegality. The Court ordered that the Claimant remain on the payroll and retain medical benefits until employment is terminated for good cause. The application was otherwise dismissed with costs to the Respondents.

Key legal issues

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01

Entitlement to sick leave and prerequisites under section 30 of the Employment Act

Holding

Sick leave is a conditional right requiring production of a medical certificate and notification of the employer as soon as reasonably practicable; the Claimant proceeded on leave before approval and did not satisfy the prerequisites

Reasoning

Section 30 confers the right to sick leave subject to a certificate of incapacity to work and prompt notification of the employer. The Claimant's own application of 29th April 2016 was for studies and medical treatment, revealing a contradiction, and her medical letters postdated or predated the relevant period. Proceeding on unapproved leave amounts to serious misconduct that the employer must address internally.

p. 6
02

Whether the Court should stay the disciplinary process and suspension

Holding

No - the disciplinary process should proceed within the Respondent's internal mechanisms where the Claimant will have an opportunity to be heard

Reasoning

The Court held that facts regarding the Claimant's absence can only be ascertained at the workplace. An invitation to a disciplinary hearing is not termination; it gives both parties a chance to be heard. Staying the process would deny the employer the ability to address misconduct and deny the employee a forum to present her defence and documents.

p. 7
03

Whether salary and medical cover can be withheld during suspension

Holding

Salary and medical benefits cannot be negated while employment subsists; the HR Policy provision to the contrary is a gross illegality

Reasoning

The Court held that interfering with an employee's salary while employment subsists frustrates the employment relationship. The Respondent's HR Policy section 21.6, which suspends salary and medical cover during suspension, cannot override this right. The Respondent was directed to the Public Service Commission policy documents as a model.

p. 8

Legal principles established

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  • Work benefits, particularly salary due to an employee, is a right that cannot be negated by workplace policy, contract or disciplinary action while employment subsists
  • A policy suspending salary during a disciplinary process is a gross illegality
  • An employee seeking sick leave must notify the employer and produce a certificate of incapacity to work as required by section 30 of the Employment Act

Court orders

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  1. 1.The Claimant shall submit herself to the internal disciplinary mechanisms of the Respondent unconditionally
  2. 2.The Claimant shall remain on the payroll of the Respondent and enjoy the medical benefits that go with the employment until such employment is terminated for good cause
  3. 3.The Claimant shall abide by lawful directions given by the Respondents with regard to her suspension and notices for internal disciplinary hearings
  4. 4.The application dated 5th July 2016 is dismissed with costs to the Respondents

Authorities

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Legislation

  • Employment Actsection 30
  • Employment Actsection 34
  • Employment Actsection 44(4)
  • Employment Actsection 46(h)
  • Employment Actsection 49
  • Employment Actsection 4
  • Constitution of KenyaArticle 28
  • Constitution of KenyaArticle 30
  • Employment and Labour Relations Court (Procedure) RulesRule 17(10)

Cases cited (9)

  • Frederick Aaundu Amolo versus Principal Namanga Mixed Day Secondary School & 2 others
    Cause No.747 of 2014
  • Peterson Ndung'u & 5 others versus The Kenya Power & Lighting Co. Ltd
    Cause No.1149 of 2011
  • Professor Gitile J Naituli versus Multi Media University College
    Cause No.1200 of 2012
  • Rebecca Ann Maina & 7 others versus Jomo Kenyatta University of Agriculture and Technology
    Cause No.1789 of 2013
  • Giella versus Cassman Brown
  • Fred M Shilanga versus Emco Billets & Steel Ltd
    Cause No.2327 of 2012
  • Banking, Insurance & Finance Union (Kenya) vs Barclays Bank of Kenya Limited
    [2014] eKLR
  • Simon Ngugi Kamau v Silpack Industries Limited
    [2015] eKLR
  • Alfred Nyungu versus Bomas of Kenya
    Cause No.620 of 2013
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules; Employment Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (16)

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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, "Dorothy Njoki Ndung’u v Machakos University College & another [2016] KEELRC 17 (KLR)", Case Analysis (2016). Cause (application dated 5th July 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/17/eng@2016-10-13

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