Kenya Union of Commercial, Food and Allied Workers v Naivas Supermarket Limited [2018] KEELRC 839 (KLR)
The bottom line
#Naivas was ordered to pay a sick shop attendant 12 months' salary after firing her for an absence the employer knew was due to illness.
What this practically means
#Executive summary
#Key legal issues
#Whether the grievant's dismissal was fair and justified
The dismissal was unfair and unjustified; the Claimant's case was uncontroverted as the Respondent neither entered appearance nor attended court.
The grievant was unwell at work and was driven to hospital by the Respondent's own driver with the Branch Manager's approval, and the Respondent even paid for her treatment. Her absence was therefore known to be sickness-related. She was entitled to sick leave under Section 30 of the Employment Act. Being marked absent and dismissed for using sickness as an excuse, without notice or a chance to be heard, rendered the termination unfair. The Respondent did not controvert the claim.
Whether the grievant was entitled to sick leave with pay
She was rightfully entitled to sick off as provided in Section 30 of the Employment Act.
Section 30 of the Employment Act entitles an employee who has served two consecutive months to not less than seven days' sick leave per twelve months of service, subject to a medical certificate, and requires notification of absence as soon as reasonably practicable. The grievant had served since January 2011, notified the Respondent through the Branch Manager's involvement in her hospitalisation, and the Respondent was fully aware of her ill-health. She therefore qualified for the statutory sick leave.
Legal principles established
#- After two consecutive months of service, an employee is entitled to sick leave of not less than seven days in each twelve consecutive months of service, subject to production of a medical certificate
- An employer who is fully aware of an employee's ill-health cannot treat the employee's sickness-related absence as absenteeism and lawfully terminate her on that basis
Court orders
#- 1.Payment of the equivalent of 12 months' salary as compensation for unfair/unlawful termination (Kshs. 200,340/=)
- 2.Payment of one month's pay in lieu of notice (Kshs. 16,695/=)
- 3.Payment in lieu of pending leave for 1 year and 9 months (Kshs. 25,042/=)
- 4.Issuance of a Certificate of Service
- 5.Respondent to pay costs of the suit to the Claimant plus interest at court rates
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (unfair termination and terminal dues claim under the Employment Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial, Food and Allied Workers v Naivas Supermarket Limited [2018] KEELRC 839 (KLR)", Case Analysis (2018). Cause No. 89 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/839/eng@2018-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.