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ELRCPartially AllowedNot stated in the judgment as provided· [2016] KEELRC 625 (KLR)

Kenya County Government Workers Union v County Public Service Board, Meru County [2016] KEELRC 625 (KLR)

Industrial Court (Employment and Labour Relations Court)
7 October 2016
1,389 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled firing a worker on approved leave without a valid reason was unlawful, awarding her 12 months' pay instead of reinstatement.

What this practically means

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Executive summary

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The claimant union, on behalf of its member Mary Chemutai Koskei (the grievant), filed a memorandum of claim on 08.10.2015 alleging unfair dismissal. The grievant, a civil servant transferred from the Municipal Council of Eldoret to the Municipal Council of Meru in 1995 as a copy typist, took approved annual leave from 23.04.2007 to 28.05.2007. During the leave she was involved in a road traffic accident on 25.05.2007 and was treated at Kiambu, Mbagathi and Kenyatta hospitals. By letter dated 05.06.2007 the town clerk alleged she had deserted duty from 23.04.2007 and she was required to respond by 19.06.2007. She replied on 20.06.2007 explaining the accident and her hospitalisation, but was suspended on 27.06.2007 and summarily dismissed by letter dated 24.09.2007 effective 23.04.2007 for absconding duty. Her out-of-time appeal to the Public Service Commission was disallowed on 26.04.2012, and the union reported a trade dispute under section 62 of the Labour Relations Act, 2007. The court found the dismissal unfair for want of a valid reason under section 43 of the Employment Act, 2007, since the grievant was on leave and had reported her accident. Reinstatement was declined due to the constitutional reorganisation of government and the elapsed time. The court declared the dismissal unlawful, awarded 12 months' gross salary as compensation, deemed the grievant retired on reorganisation of government with full benefits, and awarded the claimant costs, with payment due by 01.12.2016 failing interest at court rates.

Key legal issues

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01

Whether the summary dismissal of the grievant was fair and with a valid reason

Holding

The dismissal was unfair for want of a valid reason; the grievant was on approved leave and reported her accident and hospitalisation to the town clerk

Reasoning

The court found the grievant was on approved annual leave from 23.04.2007 to 28.05.2007 and was involved in a road traffic accident on 25.05.2007, which she reported immediately by telephone to the town clerk. She was treated at Kiambu and Mbagathi District Hospitals and given 13 days rest. The Council's allegations of desertion from 23.04.2007 were therefore unfounded, and the dismissal lacked a valid reason under section 43 of the Employment Act.

p. 3
02

Whether reinstatement was an appropriate remedy

Holding

Reinstatement was declined

Reasoning

The court weighed the reorganisation of government under the Constitution of Kenya, 2010 and the long period from the effective date of dismissal to the date of judgment, and concluded reinstatement would subject the parties to a cumbersome readjustment situation. Instead, the grievant was deemed to have retired on reorganisation of government with full benefits.

p. 3
03

What compensation was payable for the unfair dismissal

Holding

The grievant was awarded 12 months' gross monthly pay as at 23.04.2007

Reasoning

The court considered that the grievant desired to continue in employment and did not contribute to her termination, warranting the maximum compensation of 12 months' gross salary as at the date of termination, in addition to deemed retirement with full benefits under the collective agreement and contractual terms.

p. 3

Legal principles established

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  • A summary dismissal is unfair where the employer has no valid reason for the termination as envisaged in section 43 of the Employment Act, 2007
  • Reinstatement may be declined as a remedy where the constitutional reorganisation of government and passage of time would make it impractical

Court orders

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  1. 1.Declaration that the then Municipal Council of Meru violated and breached the contractual terms and obligations by dismissing the grievant without a valid reason
  2. 2.Declaration that the dismissal letter given to the grievant was unlawful, illegal and null and void
  3. 3.Respondent to pay the grievant 12 months' salaries in compensation at the rate of gross monthly pay as at 23.04.2007
  4. 4.Grievant deemed to have retired on reorganisation of government effective 23.04.2007 with full retirement benefits per the prevailing collective agreement and other contractual terms
  5. 5.Claimant to compute dues and file and serve within 14 days for recording quantum
  6. 6.Respondent to pay monies due by 01.12.2016 failing interest at court rates from date of judgment till full payment
  7. 7.Respondent to pay the claimant's costs of the suit

Authorities

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Legislation

  • Industrial Court ActSection 12
  • Labour Institutions ActSection 15(c)
  • Labour Relations ActSection 62
  • Employment ActSection 43
  • Constitution of Kenya2010 (reorganisation of government)
Jurisdiction invoked
Section 12 of the Industrial Court Act, 2011 and section 15(c) of the Labour Institutions Act, 2007

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, "Kenya County Government Workers Union v County Public Service Board, Meru County [2016] KEELRC 625 (KLR)", Case Analysis (2016). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/625/eng@2016-10-07

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