Karisa Charo Kiraga v Crown Petroleum [Kenya] Limited [2016] KEELRC 992 (KLR)
The bottom line
#A Kenyan employer that labels an absent worker a 'deserter' without a fair disciplinary process risks losing an unfair termination case anyway.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant deserted employment or was unfairly dismissed
The Respondent failed to prove desertion; the Claimant was on authorised leave and was dismissed without notice, reason or disciplinary process, making the termination unfair
The Claimant left with the Director's permission to attend his daughter's wedding preparations, with no fixed return date agreed. He was recalled by the Turn Boy and on reporting back found his truck assigned to another driver. The Respondent never wrote to him to show cause, never convened a disciplinary process, and merely notified the Labour Office of desertion. Sections 41, 43 and 45 of the Employment Act were disregarded.
Quantum of compensation for unfair termination
The Claimant's conduct - going on leave without a return date and covertly seeking employment elsewhere - contributed to the termination, warranting only minimal compensation of one month's salary under Section 49(4)(k)
Under Section 49(4)(k) the court must consider employee conduct that caused or contributed to termination. The Claimant went job-hunting without notifying his employer and had faced similar desertion allegations in another cause. Though the employer terminated irregularly, the Claimant's covert conduct contributed, so compensation was limited to one month's salary of Kshs. 25,000.
Entitlement to notice pay and annual leave pay
Notice pay granted because the contract was not terminated regularly; annual leave pay granted at the statutory minimum of 21 days per year for 3 years 7 months, computed at Kshs. 71,600
Having found the employer failed to terminate through a regular or disciplinary process, the court allowed one month's salary in lieu of notice. On leave, desertion does not disentitle a statutory benefit; the Claimant worked 3 years 7 months without leave, and the court computed 21 days per year (75.25 days) at his daily rate, granting Kshs. 71,600 rather than the claimed 30 days over 4 years.
Legal principles established
#- The burden lies on the employer to demonstrate the reason or reasons for termination, and termination must follow Sections 41, 43 and 45 of the Employment Act
- Desertion does not disentitle an employee to a benefit conferred by law
- An employer alleging desertion must set in motion a regular termination process and call the employee to answer the charge
- Employee conduct contributing to termination justifies reduced compensation under Section 49(4)(k)
Court orders
#- 1.Declaration that termination was unfair, but the Claimant's conduct contributed to termination
- 2.One month salary in compensation for unfair termination at Kshs. 25,000
- 3.Notice pay at Kshs. 25,000
- 4.Annual leave pay at Kshs. 71,600
- 5.Total award of Kshs. 121,600 payable within 30 days of delivery of the decision
- 6.No order on costs and interest
- Jurisdiction invoked
- Industrial Court [Procedure] Rules 2010, Rules 21 and 27(1)(a); dispute over unfair and unlawful termination under the Employment Act 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Karisa Charo Kiraga v Crown Petroleum [Kenya] Limited [2016] KEELRC 992 (KLR)", Case Analysis (2016). Cause Number 28 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/992/eng@2016-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.