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ELRCPartially AllowedMemorandum of Claim dated 5th March 2014, filed 7th March 2014· [2016] KEELRC 577 (KLR)

Martin Kalani Vodongo v Roy Hauliers Limited [2016] KEELRC 577 (KLR)

Employment and Labour Relations Court
7 October 2016
LNLinnet Ndolo
1,531 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 an employer cannot fire a driver for refusing to drive when two medical reports conflicted—it should have sought an independent opinion.

What this practically means

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Executive summary

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The Claimant, employed as a Driver from 15th September 2011, was involved in a road accident on 19th March 2013 along the Moyale-Marsabit Road and hospitalized for about three weeks. He performed light duties from July 2013. On 19th December 2013 the Respondent's company doctor certified him fit to resume full truck driving duties; on 20th December 2013 his own doctor, relying on an x-ray, recommended continued light duty. After the Claimant declined to acknowledge a truck allocation letter, he was summarily dismissed on 21st December 2013. The court framed three issues: valid reason, procedural fairness, and remedies. Applying the reasonable-employer standard under Section 43 of the Employment Act, the court held that faced with two conflicting medical reports the Respondent ought to have sought a third independent opinion; the company doctor, a long-term employee of the company and without the benefit of x-ray films, could not be considered independent. The Claimant's refusal to resume driving was therefore justifiable and the dismissal substantively unfair. The court further found no evidence of compliance with the Section 41 disciplinary procedure, rendering the dismissal procedurally unfair. Judgment was entered for the Claimant for 8 months' salary as compensation (Kshs. 178,120), one month's notice pay (Kshs. 22,265) and 21 days' December salary (Kshs. 15,586), totalling Kshs. 215,971, with costs to the Claimant. The claim was partially allowed; the 12 months' compensation sought was not awarded in full and interest was not granted.

Key legal issues

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01

Valid reason for summary dismissal

Holding

The Respondent had no valid reason to dismiss the Claimant, who justifiably declined to resume driving duties given conflicting medical reports

Reasoning

Section 43 requires the employer to prove a valid reason, assessed objectively against what a reasonable employer would have done. Two conflicting medical reports existed: the company doctor's report lacked x-ray evidence and the doctor was not independent, while the claimant's doctor relied on an x-ray done the same day. Ignoring the treating doctor's opinion without justification made the refusal to resume duties justifiable.

p. 4
02

Procedural fairness under Section 41

Holding

The dismissal was procedurally unfair as there was no evidence of compliance with the Section 41 disciplinary procedure

Reasoning

Beyond substantive justification, Section 41 mandates a strict disciplinary process including notification and hearing. The Respondent adduced no evidence of any attempt to follow this procedure, rendering the summary dismissal procedurally unfair in addition to being substantively unjustified.

p. 4
03

Remedies for unfair dismissal

Holding

Claimant awarded 8 months' salary as compensation, one month's notice pay and 21 days' December salary

Reasoning

Having found both substantive and procedural unfairness, the court exercised discretion under the Employment Act to award eight months' salary as compensation, factoring in the claimant's length of service and the respondent's conduct in the dismissal transaction, alongside notice pay and salary for days worked.

p. 4

Legal principles established

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  • Where an employer is faced with two conflicting medical reports, the reasonable employer's course is to obtain a third independent medical opinion before acting on its own doctor's report
  • An employer must prove both a valid reason and a fair procedure under Sections 43 and 41 of the Employment Act before summary dismissal

Court orders

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  1. 1.Judgment for the Claimant: 8 months' salary in compensation of Kshs. 178,120
  2. 2.One month's salary in lieu of notice of Kshs. 22,265
  3. 3.Salary for 21 days worked in December 2013 of Kshs. 15,586
  4. 4.Total judgment of Kshs. 215,971
  5. 5.Costs of the case awarded to the Claimant

Authorities

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Legislation

  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 44(4)(E)
  • Work Injury Benefits Act2007
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act, 2007; claim for compensation for wrongful dismissal)

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, "Martin Kalani Vodongo v Roy Hauliers Limited [2016] KEELRC 577 (KLR)", Case Analysis (2016). Memorandum of Claim dated 5th March 2014, filed 7th March 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/577/eng@2016-10-07

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