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ELRCPartially AllowedCause No 33B of 2014· [2016] KEELRC 1534 (KLR)

Tirus Kariuki Mungai v Postal Corporation of Kenya [2016] KEELRC 1534 (KLR)

Employment and Labour Relations Court
18 March 2016
LNLinnet Ndolo
2,123 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that sacking a sick employee for 'desertion' was unfair and awarded him over Kshs.500,000 plus costs.

What this practically means

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Executive summary

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The Claimant, a Postal Assistant employed by the Respondent from 1988, was suspended on 7th July 2010 on allegations of desertion of duty after failing to report to work from 28th June 2010. He responded on 7th October 2010 attributing his absence to ill health and attaching sick sheets; his Controlling Officer, Sevu, also wrote recommending counseling. He was nonetheless dismissed by letter dated 19th January 2011 backdated to 28th June 2010, and his appeal was declined as inadmissible under the Posta Code. He claimed declarations of unfair dismissal, salary to retirement age, loss of earnings, incorporeal loss and general damages. The Court framed three issues: desertion, justifiability and fairness of termination, and remedies. On the medical evidence of a Clinical Officer from Tigoni District Hospital, the Court found the Claimant was too ill to report for work and thus not guilty of desertion as defined in law. It found the Respondent had no valid reason for dismissing him and missed the procedural fairness mark, noting in particular the failure to notify his trade union and the mechanical rejection of his appeal on deadline grounds, observing that deadlines are not cast in stone. The Court awarded 12 months' salary (Kshs.322,620) in compensation, one month's salary in lieu of notice (Kshs.26,885) and salary for the suspension-to-dismissal period (Kshs.151,452), totalling Kshs.500,957, with interest at court rates and costs to the Claimant.

Key legal issues

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01

Whether the Claimant deserted duty

Holding

No; the Claimant was ill and unable to work, and notified his Controlling Officer of his medical condition as soon as he was able

Reasoning

The Court accepted the testimony of the Clinical Officer that the Claimant was attended at Tigoni Hospital on 8th July 2010, managed for depression disorders and discharged on 5th October 2010. Desertion requires wilful and unjustified abandonment of duties. The Controlling Officer became aware of the medical condition before dismissal and recommended counseling, not dismissal.

p. 5
02

Whether the termination was justifiable and fair

Holding

No; the Respondent had no valid reason for dismissal and missed the procedural fairness mark

Reasoning

The Respondent failed to take the Claimant's medical condition into account at the dismissal and appeal stages, provided no details of attempts to trace him, and never notified his trade union. The appeal was rejected on inadmissibility grounds under the Posta Code without substantive consideration of the illness.

p. 5
03

Whether the Claimant is entitled to the remedies sought

Holding

Partially; the Court awarded 12 months' salary compensation, one month's salary in lieu of notice, and salary for the suspension-to-dismissal period, with interest and costs

Reasoning

In exercising discretion the Court considered the Claimant's long service and the Respondent's conduct in the dismissal transaction. The other heads claimed (salary to retirement age, loss of earnings, incorporeal loss, general damages) were not awarded.

p. 5

Legal principles established

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  • An employee absent due to illness who reports to his controlling officer as soon as able is not guilty of desertion
  • An employer considering dismissal on grounds of desertion ought at least to notify the employee's trade union
  • Disciplinary deadlines are not cast in stone and flexibility must be exercised where the case demands

Court orders

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  1. 1.Award of 12 months' salary in compensation for unlawful dismissal (Kshs.322,620)
  2. 2.Award of 1 month's salary in lieu of notice (Kshs.26,885)
  3. 3.Award of salary from date of suspension to date of dismissal, 5 months and 19 days (Kshs.151,452)
  4. 4.Total award of Kshs.500,957 with interest at court rates from the date of the award until payment in full
  5. 5.Claimant to have the costs of the case

Authorities

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Legislation

  • Posta CodeJ9(iii), Clauses 6.4 and 6.5
  • Disciplinary Rules (Human Resource circular dated 27th August 2009)
Jurisdiction invoked
Employment and Labour Relations Court established under Article 162(2) of the Constitution (first-instance employment cause)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Tirus Kariuki Mungai v Postal Corporation of Kenya [2016] KEELRC 1534 (KLR)", Case Analysis (2016). Cause No 33B of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1534/eng@2016-03-18

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