Claire Vike v Alexandria Cancer Cente and Palliative Care Hospital [2018] KEELRC 2567 (KLR)
The bottom line
#A Kenyan court upheld a nurse's dismissal for absconding but still awarded her unpaid leave and overtime because her employer kept no records.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the claimant's employment was unfair and unprocedural
The termination was not unfair; the claimant was invited by letter dated 19th June 2017 to show cause against absconding and failed to respond, satisfying sections 44 and 41(2) of the Employment Act
Both parties agreed the claimant reported late on 31st May 2017 and was asked to wait for the general manager but left. The respondent issued a show-cause notice calling her to a disciplinary hearing, directing her to give reasons for her 19 days' absence within three days. She neither attended nor replied, though she had earlier demanded terminal dues through advocates. Absconding and ignoring lawful directions breached section 44(3), justifying summary dismissal notwithstanding no termination letter.
Whether the claimant was entitled to pay for untaken annual leave
Leave pay of Kshs.25,000 awarded; the respondent produced no leave records to show leave was taken or paid in lieu
Section 28 obliges the employer to ensure annual leave is taken within 12 months, and sections 10(6) and (7) place the duty of keeping and producing work records on the employer. The respondent's assertion that leave was paid in lieu was unsupported by any records. Over the 13 months of employment from 26th April 2016 to 31st May 2017, the claimant had earned annual leave, compensable at her last wage of Kshs.25,000.
Whether the claimant worked overtime and is entitled to overtime pay
Overtime of Kshs.24,375 awarded for 3 extra hours per day, 6 days a week, over 13 months (234 extra hours)
The claimant testified she worked 7.30am to 6.30pm, six days a week, with no lunch break. The respondent's own case that 7.33am was late corroborated the reporting time. The letter of appointment did not agree work hours, and the employer produced no work-hour records, so the claimant's evidence was believed. Based on the last wage of Kshs.25,000, the 234 extra hours yielded Kshs.24,375.
Legal principles established
#- An employer must prove the reasons for termination; failure renders the termination unfair under sections 43 and 45 of the Employment Act
- Even where summary dismissal for absconding is justified, the employer must comply with section 41(2) by hearing the employee, or demonstrate exceptional circumstances
- Where an employee absent from work is issued a show-cause notice and fails to respond, the employer has met the threshold for summary dismissal
- The employer bears the duty to keep and produce employment records; in their absence the employee's evidence is believed
Court orders
#- 1.Judgment entered for the claimant for leave pay due at Kshs.25,000.00
- 2.Overtime pay of Kshs.24,375.00
- 3.A Certificate of service to issue in accordance with section 51 of the Employment Act, 2007
- 4.Each party to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Thumbi v Sparkling Clean Services Ltd (Cause 1093 of 2016) [2022] KEELRC 1476 (KLR)[2022] KEELRC 1476 (KLR)30 Jun 2022
- Austin Opele Okunja v Senaca East Africa [2022] KEELRC 1002 (KLR)[2022] KEELRC 1002 (KLR)21 Jan 2022
Cite this brief
#Cite this brief
Caselaw, "Claire Vike v Alexandria Cancer Cente and Palliative Care Hospital [2018] KEELRC 2567 (KLR)", Case Analysis (2018). Cause No. 107 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2567/eng@2018-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.