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ELRCPartially AllowedCause No. 38 of 2013· [2018] KEELRC 831 (KLR)

Anthony Thuo Kanai v Cannon Assurance Limited [2018] KEELRC 831 (KLR)

Employment and Labour Relations Court of Kenya
15 October 2018
5,966 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that even when an employee commits gross misconduct, dismissing them without a hearing still makes the dismissal unfair and costly.

What this practically means

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Executive summary

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The claimant, formerly Manager-Legal Affairs of the respondent, was summarily dismissed on 13th November 2012 for unauthorised absence and insubordination after proceeding on leave without approval and without handing over. He sued for declarations of unfair and unlawful termination, constitutional infringements (Articles 28, 30, 31, 35(1)(b) and 41), reinstatement, twelve months' compensation, notice pay, terminal dues, prospective earnings to retirement, an apology and a certificate of service. The court framed four issues: valid reasons, authority to dismiss, due process, and remedies. On valid reasons, the court found the claimant proceeded on unapproved leave (absenteeism) and failed to hand over (insubordination), both justifying summary dismissal under Sections 43 and 44(4) of the Employment Act; his unnotified sick-off did not excuse his absence. However, on due process, the court found the respondent failed to accord the claimant a hearing as mandated by Section 41, with the respondent's HR Manager conceding this in cross-examination, rendering the dismissal procedurally unfair. Constitutional infringement claims failed: leave timing was a matter for agreement under Section 28(5), and an unapproved leave application gave rise to no rights violation. Balancing the valid substantive grounds against the claimant's own contribution in proceeding on unapproved leave, the court awarded 8 months' salary compensation (Kshs. 3,057,656), three months' notice pay, payment for 33 admitted leave days, pension dues, a certificate of service and costs. Reinstatement, constitutional damages and prospective earnings were refused. Suit partially allowed.

Key legal issues

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01

Whether there were valid reasons for summary dismissal

Holding

Yes - the Claimant proceeded on leave without approval (absenteeism) and failed to hand over as instructed (insubordination), both gross misconduct under Section 44(4) of the Employment Act

Reasoning

The Claimant admitted leave required supervisory approval. He left before approval and without handing over. He did not notify his supervisor of the sick-off until 4th December 2012, breaching the HR Handbook and his contract. Authorities cited confirm insubordination and unnotified absence are valid grounds for summary dismissal under Sections 43 and 44(4).

p. 6
02

Whether due process was followed before dismissal

Holding

No - the Claimant was not accorded a hearing as required by Section 41(1) and (2) of the Employment Act, rendering the dismissal procedurally unfair

Reasoning

There was no indication of a hearing, no notification of charges, and no opportunity to be accompanied. The Respondent did not demonstrate efforts to trace the Claimant despite being in communication with him. The Respondent's own HR Manager admitted due process was not followed, and the Board Chairman's letter confirmed the Managing Director terminated the Claimant without following due process.

p. 7
03

Whether the Claimant's constitutional rights were infringed

Holding

No - the failure to approve leave was a matter for mutual agreement under Section 28(5) of the Employment Act and did not amount to a constitutional infringement

Reasoning

The court held that although leave is an entitlement, the employer has a duty to agree with the employee on the timing of leave. Since the Claimant's leave application had not been approved and was still under consideration, no infringement of Article 41(2)(b) or of the Universal Declaration of Human Rights arose.

p. 7
04

Whether the Claimant was dismissed by an authorised person

Holding

The judgment frames this as an issue but does not make an express finding; the evidence showed the Managing Director who dismissed the Claimant was himself dismissed for doing so unilaterally without following due process

Reasoning

The Respondent's Board Chairman's letter dated 20th August 2013 confirmed that the Managing Director unilaterally terminated the Claimant without following due process and without giving the Board reasons. The HR Manager stated the Managing Director had authority to sack the Claimant. The court made no explicit holding on this issue.

p. 7
05

Remedies entitlement

Holding

The Claimant, having been unfairly dismissed procedurally, was awarded 8 months' salary compensation, 3 months' notice pay, 33 leave days' pay, pension dues, certificate of service and costs

Reasoning

Although valid reasons existed, the dismissal was procedurally unfair, entitling compensation under Section 49 of the Employment Act. Compensation was reduced to 8 months because of the Claimant's own contribution in proceeding on unapproved leave.

p. 7

Legal principles established

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  • An employer bears the burden of proving valid reasons for termination under Section 43 of the Employment Act
  • Absence from work without notifying the employer of illness amounts to absconding duty justifying summary dismissal
  • Even where an employee absconds, the employer must take steps to notify the employee of impending dismissal before summarily dismissing him
  • Section 41 of the Employment Act imposes a mandatory pre-termination hearing; failure to comply renders the termination procedurally unfair

Court orders

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  1. 1.Compensation of 8 months' salary (8 x 382,207 = Kshs. 3,057,656) for unfair dismissal
  2. 2.Payment of 3 months' salary in lieu of notice (382,207 x 3 = Kshs. 1,146,621)
  3. 3.Payment for 33 leave days admitted by the Respondent (33/30 x 382,207 = Kshs. 420,427.7)
  4. 4.Payment of pension dues from the pension fund
  5. 5.Issuance of a certificate of service to the Claimant
  6. 6.Respondent to pay costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 28, 30, 31, 35(1)(b), 41, 41(2)(b)
  • Employment Act, 2007Sections 10(5), 10(7) & 13, 28(5), 41(1) & (2), 43, 44(3), 44(4)(a)-(g), 45, 46(b)
  • Employment Act (Chapter 226 of the Laws of Kenya)right to leave
  • Companies Act, Cap 486Part I and Part II of Table A, Regulation 80
  • Universal Declaration of Human RightsArticles 23 and 24

Cases cited (7)

  • Abraham Gumba v Kenya Medical Supplies Authority
    [2014] eKLR
  • Linet Akasa Shikoli v Lilian Otundo
    [2014] eKLR
  • Banking, Insurance & Finance Union (Kenya) v Barclays Bank of Kenya Ltd
    [2014] eKLR
  • SACWU v Dyasi
    [2001] 7 BLLR 731 (LAC)
  • Godfrey Anjere -Vs- Unique Suppliers Limited
    [2015] eKLR
  • Kenya Union of Commercial Food and Allied Workers -Vs- Meru North Farmers Sacco Limited
    [2014] eKLR
  • Sims v. the Board of Trustees Holly Springs Municipal Separate District School, 414 SO. 2d 431 [Miss. 1982]
    414 SO. 2d 431
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution and the Employment Act, 2007 (not expressly stated in the extract)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Anthony Thuo Kanai v Cannon Assurance Limited [2018] KEELRC 831 (KLR)", Case Analysis (2018). Cause No. 38 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/831/eng@2018-10-15

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