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ELRCPartially AllowedCause No. 1765 of 2014· [2016] KEELRC 1862 (KLR)

Martin Adongo Sangany v Villa Care Management Limited (Cause 1765 of 2014) [2016] KEELRC 1862 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
3 June 2016
MMM. Mbaru
2,252 words in judgment
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The bottom line

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A Kenyan court ruled that an employer may dismiss an employee jailed beyond 14 days, but must still pay all terminal dues and keep proper employment records.

What this practically means

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Executive summary

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The claimant, employed on 7 May 2012 as a Facility Officer, was arrested at the respondent's head office on 6 February 2014 over allegations of attempted extortion by threats against one Surinder Kaur Bizar, and remained in custody for about two weeks. While in custody, his employment was terminated by letter dated 1 March 2014 on the ground of prolonged imprisonment exceeding 14 days. He claimed constructive dismissal, unfair termination, and a suite of terminal dues. The respondent, despite filing a defence asserting lawful termination due to prolonged incarceration, did not call any evidence at the hearing, leaving its statement bare. The court held that summary dismissal on the ground of arrest and detention beyond 14 days is permitted under section 44 of the Employment Act, and that violations flowing from the claimant's lawful arrest and consequent inability to work could not be visited upon the employer; the unfair termination claim therefore failed. However, the employer bore the statutory duty to keep and produce employment records; failing to do so, the court presumed the records did not exist or were unfavourable to the defence, entitling the claimant to statutory dues. The court awarded notice pay of kshs.30,000, overtime of kshs.189,750 for 88 Saturdays and 88 Sundays, service pay of kshs.15,000, house allowance of kshs.94,500, and kshs.16,000 for work on public holidays, with costs to the claimant. Claims for a declaration of unfair dismissal, 12 months' compensation, punitive damages, a fine under section 51(3), and accrued leave/unpaid salary (already paid) were refused. Judgment delivered on 3 June 2016 by M. Mbaru, J.

Key legal issues

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01

Unfair termination by reason of prolonged imprisonment under section 44 of the Employment Act

Holding

The summary dismissal on the ground of arrest and detention exceeding 14 days was permissible and the unfair termination claim failed; the arrest was unrelated to employment and the employer complied by handing the claimant over to police

Reasoning

Section 44 allows summary dismissal where an employee arrested for a cognizable offence is not released within 14 days. The claimant was arrested by police and handed over by the respondent, which was aware of his whereabouts. The claimant's absence made the employment contract untenable, and violations flowing from a lawful arrest cannot be attributed to the employer. Without respondent evidence, the court relied on the statement of defence in reaching this finding.

p. 3
02

Employer's record-keeping and evidential burden on statutory entitlements

Holding

The respondent, having filed no evidence or employment records, failed to displace the claims for minimum statutory entitlements including overtime, service pay and house allowance

Reasoning

The duty to keep records of hours of work, leave, rest days, housing and statutory deductions rests on the employer under sections 27, 28, 31 and 35 of the Employment Act. Once a claim is filed and contested, the employer must produce records. Non-production leads the court to presume the records do not exist or are adverse to the employer, so the claimant's legal rights to rest days, leave, housing and service pay stand.

p. 3
03

Service pay where statutory dues deducted but not remitted

Holding

Service pay awarded at kshs.15,000, applying 15 days' salary per full year served under section 35, protected by sections 35(5) and (6) where dues were deducted but not remitted

Reasoning

The respondent deducted statutory dues but did not remit them, engaging the employee protections in section 35(5) and (6). The claimant served less than two full years (7 May 2012 to 1 March 2014), so service pay was computed at 15 days' salary for each full year served, yielding kshs.15,000.

p. 4

Legal principles established

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  • Even where section 44 of the Employment Act permits summary dismissal, the employer must still comply with the hearing requirements of section 41(2), and where the employer cannot practically hear the employee, it must demonstrate the circumstances
  • Where an employee's absence from work results from lawful arrest by the police and the employer is aware of the employee's whereabouts, the resulting inability to work cannot be visited upon the employer
  • The duty to keep and produce employment records lies with the employer; failure to produce them where contested leads the court to infer the records do not exist or are unfavourable to the employer
  • Terminal dues remain payable to an employee notwithstanding termination on account of incarceration

Court orders

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  1. 1.Judgment entered for the claimant against the respondent in the following terms: Notice pay kshs.30,000.00; Overtime pay kshs.189,750.00; Service pay kshs.15,000.00; House allowance kshs.94,500.00; Work during public holidays kshs.16,000.00
  2. 2.Costs of the suit to the claimant
  3. 3.Orders accordingly

Authorities

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Legislation

  • Penal Codesection 300(1)
  • Employment Actsection 44
  • Employment Actsection 44(1)(f)
  • Employment Actsection 41
  • Employment Actsection 41(2)
  • Employment Actsection 27
  • Employment Actsection 27(2)
  • Employment Actsection 28
  • Employment Actsection 31
  • Employment Actsection 35
  • Employment Actsection 35(5) and (6)
  • Employment Actsection 51
  • Employment Actsection 51(3)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; claim for unfair termination and terminal dues)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Martin Adongo Sangany v Villa Care Management Limited (Cause 1765 of 2014) [2016] KEELRC 1862 (KLR)", Case Analysis (2016). Cause No. 1765 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1862/eng@2016-06-03

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