Sarafina Wanyonyi v Lessos Veterinary Suppliers Ltd [2016] KEELRC 768 (KLR)
The bottom line
#A Kenyan employer who claims an employee absconded must prove it and still hold a fair hearing, or the dismissal is unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant absconded or was dismissed
The Court found the Claimant did not abscond; she was dismissed, as her explanation for not returning was unchallenged and the manager who allegedly told her not to return was not called as a witness.
The Claimant admitted not reporting back to work but gave a reason: that a Manager, Philip Ambuni, told her on the director's instructions that she was not required. That reason was not challenged, the manager was not called as a witness, and the director admitted he did not deal with employees day to day. The Respondent also showed no attempts to contact the Claimant. On the facts, the Court preferred the Claimant's account and found dismissal rather than abscondment.
Whether the termination was unfair
The dismissal was unfair because no hearing was held as required by section 41 of the Employment Act, 2007.
Section 41 requires an employer, before terminating on grounds of misconduct, to explain the reasons to the employee in a language they understand and allow them to have a representative present. It was undisputed that no such hearing was held. Even if the Claimant had absconded, the Respondent did not accept the repudiation by issuing an ultimatum, so the termination could not stand as a lawful response to desertion.
Entitlements: notice, accrued leave and compensation
The Claimant was awarded one month pay in lieu of notice, pro rata accrued leave of Kshs 8,669/- and compensation equivalent to one month's gross wages.
Clause 3 of the appointment letter and section 35 of the Employment Act required one month written notice, none of which was given. No employment records were produced by the Respondent, so under sections 10(3), (7) and 74 the Court found for the Claimant on accrued leave for her approximately 8 months of service. Compensation was limited to one month's gross wages given the short length of service.
Legal principles established
#- Abscondment/desertion must be proved by the employer to involve an intention by the employee not to resume work, and repudiation by abscondment does not automatically terminate the contract; the innocent employer must accept the repudiation.
- An employer alleging abscondment must still attempt to reach the employee and give them an opportunity to explain before dismissal; failing which the termination is procedurally unfair under section 41 of the Employment Act.
Court orders
#- 1.1 month pay in lieu of notice Kshs 14,000/-
- 2.Accrued leave Kshs 8,669/-
- 3.Compensation (equivalent to 1 month's gross wages) Kshs 14,000/-
- 4.Total award to the Claimant of Kshs 36,669/-
- 5.Claimant to have costs of the Cause
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination claims under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Titus Delax Opiyo Were v Creative Consolidated Systems Limited [2020] KEELRC 102 (KLR)[2020] KEELRC 102 (KLR)17 Dec 2020followed
- Erick Gitau Kamau v Jiwani Impex Limited [2018] KEELRC 2018 (KLR)[2018] KEELRC 2018 (KLR)18 May 2018applied
Cite this brief
#Cite this brief
Caselaw, "Sarafina Wanyonyi v Lessos Veterinary Suppliers Ltd [2016] KEELRC 768 (KLR)", Case Analysis (2016). ELRC Cause (Nakuru), filed 14 November 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/768/eng@2016-09-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.