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ELRCAllowedCause Number 1589 of 2015· [2018] KEELRC 2298 (KLR)

Mary Auma Amimo v Vijay Shrivastava [2018] KEELRC 2298 (KLR)

Employment and Labour Relations Court of Kenya
16 February 2018
ANAbuodha J. N.
1,369 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 replacing a sick employee without telling her first is unfair termination, awarding her twelve months' salary.

What this practically means

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Executive summary

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The claimant sued the respondent, her former employer, alleging that her employment as a nanny to the respondent's aging mother from 19th December 2014 was unfairly terminated. She claimed she was required to perform duties beyond her job description, fell ill with recurring typhoid allegedly due to poor working conditions and lack of gloves, and was chased away on reporting back after sick leave, with her medical records thrown back at her. The respondent denied the claims, contending that the claimant's duties were explained at engagement, that gloves and aprons were provided, and that she was summarily dismissed for absconding duty. In oral testimony, the claimant maintained she was replaced while on sick leave, and the respondent's second witness admitted the claimant was sick when she left work and that the respondent escorted her to the bus stop. The court found the abscondment defence untenable, held that the respondent ought to have notified the claimant before replacing her, and that the denial of her illness was in bad faith. Judgment was entered for the claimant: one month's pay in lieu of notice (Kshs 11,600), one month's salary in lieu of leave (Kshs 11,600), twelve months' salary as compensation for unfair termination (Kshs 139,200), and costs of the suit.

Key legal issues

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01

Whether the termination of the claimant's services was unfair

Holding

The court found the termination unfair, holding that the claimant did not abscond but was unwell, and the respondent replaced her without prior notice.

Reasoning

The respondent's own witness confirmed the claimant was unwell when she left work and that the respondent escorted her to the bus stop. This contradicted the assertion that she absconded. Although the exigencies of caring for a sick parent may have required a replacement, the respondent was obliged to notify the claimant before replacing her, and denying her illness was in bad faith.

p. 2
02

Remedies for unfair termination

Holding

The court awarded one month's pay in lieu of notice, one month's salary in lieu of leave, twelve months' salary as compensation for unfair termination, and costs.

Reasoning

Having found the termination unfair, the court entered judgment against the respondent for notice pay of Kshs 11,600, leave pay of Kshs 11,600, and twelve months' compensation of Kshs 139,200, together with costs of the suit.

p. 2

Legal principles established

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  • An employer who intends to replace an employee on sick leave must notify the employee of such intention prior to replacing her, and denial of an employee's illness by an employer is bad faith.

Court orders

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  1. 1.One month's pay in lieu of notice of Kshs 11,600
  2. 2.One month's salary in lieu of leave of Kshs 11,600
  3. 3.Twelve months' salary as compensation for unfair termination of services of Kshs 139,200
  4. 4.Costs of the suit
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act claims for unfair termination)

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, "Mary Auma Amimo v Vijay Shrivastava [2018] KEELRC 2298 (KLR)", Case Analysis (2018). Cause Number 1589 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2298/eng@2018-02-16

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