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ELRCDismissedCause No. 1135 of 2013· [2017] KEELRC 1996 (KLR)

Andrew Ogola Makomere v Agro Industrial Tools Limited [2017] KEELRC 1996 (KLR)

Employment and Labour Relations Court of Kenya
29 June 2017
MMM. Mbaru
1,598 words in judgment
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The bottom line

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A Kenyan welder lost his dismissal case because he never told his employer he was sick or produced a proper medical certificate on return.

What this practically means

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Executive summary

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The Claimant, employed as a Welder and Fitter from January 2012 at a daily wage of Kshs.400, sued for unlawful summary dismissal. He alleged he suffered back and chest injuries while lifting a heavy metallic shaft at work on 21st March 2013, was hospitalised for ten days, and was summarily dismissed on 2nd April 2013 for absconding duty from 21st March to 2nd April 2013. He sought notice pay of Kshs.12,000, sick leave pay of Kshs.4,000, twelve months' compensation of Kshs.144,000, pension contributions of Kshs.5,600 and costs. The Respondent denied the dismissal, asserting the Claimant walked out of work on 18th March 2013 without permission, absconded, returned on 2nd April 2013, was paid Kshs.1,200 for days worked and left claiming to have found other employment. The Respondent's witness testified no accident was reported on 21st March 2013. The court, applying section 34 of the Employment Act and authorities including Dorothy Ndung'u v Machakos University College and Rodgers Titus Wasike v General Motors E.A. Limited, held that a sick employee must notify the employer within a reasonable time, possibly through a third party, and submit a medical certificate on resuming duty. The Morningside Medical Clinic report tendered was held not to be a medical certificate envisaged under section 34, being stamped by a different entity. Absence of evidence of communication or certification meant the summary dismissal was justified under section 44. The claim was dismissed in its entirety with each party bearing its own costs.

Key legal issues

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01

Whether the dismissal was justified

Holding

Summary dismissal was justified because the Claimant did not communicate his alleged illness or submit a medical certificate upon resuming duty

Reasoning

The court accepted that an employee may be absent up to 30 days for illness if the employer is notified within reasonable time, even through a third party, and a medical certificate is submitted on return. The Claimant gave no evidence of submitting a medical certificate; the clinic report tendered was not a certificate envisaged by section 34 and was stamped by a different entity. His unauthorised absence therefore warranted summary dismissal under section 44.

p. 3
02

Whether the Claimant was injured at work

Holding

The court did not make a firm finding on the injury, resolving the claim instead on the absence of authorisation and medical certification

Reasoning

The parties disputed whether the Claimant was at work on 21st March 2013. The Claimant admitted he was not at work from 21st to 30th March. The court framed its analysis on the duties of a sick employee under section 34 of the Employment Act, holding that even if ill, the Claimant was bound to notify the employer and produce a proper medical certificate, which he did not do.

p. 2

Legal principles established

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  • An employee absent due to illness must inform the employer within a reasonable time, personally or through a third party, and submit a medical certificate from a medical practitioner upon resuming duty
  • Absence from work without authorisation or a genuine, reasonable and valid reason justifies summary dismissal under section 44 of the Employment Act

Court orders

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  1. 1.The claim is dismissed in its entirety
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Employment ActSection 34
  • Employment ActSection 44

Cases cited (2)

  • Dorothy Ndung'u versus Machakos University College
    [2016] eKLR
  • Rodgers Titus Wasike versus General Motors E.A. Limited
    Cause No.1322 of 2014
Jurisdiction invoked
Article 162(2) of the Constitution (Employment and Labour Relations Court) - employment cause under the Employment Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Andrew Ogola Makomere v Agro Industrial Tools Limited [2017] KEELRC 1996 (KLR)", Case Analysis (2017). Cause No. 1135 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1996/eng@2017-06-29

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