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ELRCPartially AllowedCause No 459 of 2012· [2016] KEELRC 663 (KLR)

Kenya Game Hunting and Safaris Workers Union v Payless Car Hire, Tour and Rent a Car [2016] KEELRC 663 (KLR)

Employment and Labour Relations Court
2 September 2016
ANAbuodha Jorum Nelson
400 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 that firing a sick worker with a doctor's letter is unfair, but upheld a properly conducted redundancy.

What this practically means

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Executive summary

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A claimant union brought a claim on behalf of three grievants against a respondent employer. James Gitau was summarily dismissed for absence from work without permission, while Alex Katiku and Julius Okelo were terminated on account of redundancy with an offer to pay terminal dues upon clearing with the respondent. The court stated that termination of employment must be done in accordance with the contract, any applicable collective bargaining agreement, and the Employment Act, and that the dismissal decision is tested by whether a reasonable employer, faced with the same reasons, would dismiss. Applying that test, the court found that James had reasonable cause for his absence - he was unwell and produced a doctor's letter - and that dismissing him despite that evidence was unreasonable and unfair. The court awarded him one month's pay in lieu of notice, seven days worked in February 2007, and eight months' salary for unfair termination. As to Alex and Julius, the court held that it cannot stop a redundancy carried out in accordance with the law, and that the union did not dispute the legality of the redundancy, complaining only of the resulting loss of employment. On perusal of the termination letters, the court found the redundancy complied with the law and ordered that the grievants be paid their redundancy dues per their termination letters if not already paid. That claim was dismissed with no order as to costs. Judgment delivered at Nairobi on 2 September 2016 by Abuodha Jorum Nelson, Judge.

Key legal issues

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01

Fairness of summary dismissal for illness-related absence

Holding

Dismissal was unfair because the claimant had reasonable cause (illness evidenced by a doctor's letter)

Reasoning

The court applied the reasonable employer test. James was absent due to illness and produced a doctor's letter. Dismissing him despite that evidence was unreasonable and therefore unfair, attracting notice pay, days worked, and compensation of eight months' salary.

p. 1
02

Validity of redundancy terminations

Holding

The redundancy was carried out in accordance with the law; the claim was dismissed

Reasoning

The court held it cannot stop a lawful redundancy. The union did not dispute that the redundancy complied with the law, only its consequence of job loss. On perusal of the termination letters, the court found the redundancy lawful and dismissed that claim.

p. 1

Legal principles established

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  • Termination of employment must accord with the contract, applicable CBA, and the Employment Act
  • The dismissal decision is tested against the standard of a reasonable employer

Court orders

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  1. 1.Award to James Gitau: one month's pay in lieu of notice
  2. 2.Award to James Gitau: 7 days worked in February 2007
  3. 3.Award to James Gitau: eight months' salary for unfair termination of services
  4. 4.The grievants to be paid their redundancy dues as per their termination letters if not paid already
  5. 5.Claim by Alex and Julius against the respondent dismissed with no order as to costs

Authorities

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Legislation

  • Employment ActNot specified
Jurisdiction invoked
Employment Act and laws governing termination of employment (not specifically cited)

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 Game Hunting and Safaris Workers Union v Payless Car Hire, Tour and Rent a Car [2016] KEELRC 663 (KLR)", Case Analysis (2016). Cause No 459 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/663/eng@2016-09-02

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