Gordon James Oyugi v Gulsan Construction [2019] KEELRC 87 (KLR)
The bottom line
#A Kenyan employer was ordered to pay a driver unfairly dismissed while on sick leave after a workplace snake bite, because no fair procedure was followed.
What this practically means
#Executive summary
#Key legal issues
#Validity of reason and fairness of procedure for summary dismissal
The summary dismissal was wrongful and unfair because the respondent failed to demonstrate a valid reason and fair procedure under Sections 41 and 43 of the Employment Act.
The respondent corroborated that the claimant was bitten by a snake in the course of employment and granted only 7 days' sick leave. The dismissal letter cited failure to obey a lawful and proper command without explaining what command was breached. No show cause letter or invitation to a disciplinary hearing was produced, denying the claimant an opportunity to be heard.
Entitlement to sick leave where injury sustained in the course of employment
The claimant had a justifiable reason to be treated in Nairobi for the snake bite sustained at work until he recovered.
Under Section 30 of the Employment Act an employee is entitled to at least 7 days' paid sick leave and a further 7 days on half pay per year. Because the injury arose in the course of employment, the leave was more deserved, and the employer's remedy was to extend leave, not dismiss.
Quantum of compensation
Compensation equivalent to two months' gross salary plus one month's salary in lieu of notice, totalling Kshs.77,418, based on a gross monthly salary of Kshs.25,806.
The court relied on the claimant's four months' service, his wish to continue working, his non-contribution to the dismissal, and the sympathetic circumstances of a workplace snake bite. RW1 testified the basic monthly salary was Kshs.22,440, and house allowance at 15% raised gross pay to Kshs.25,806.
Legal principles established
#- An employer has a discretion to extend an employee's sick leave with or without pay but may not summarily dismiss an employee on sick leave without written notice, notice to show cause or invitation to a disciplinary hearing.
- Sick leave under Section 30 of the Employment Act is more deserved where the sickness or injury was sustained in the course of employment.
Court orders
#- 1.Judgment entered in favour of the claimant against the respondent in the sum of Kshs.77,418 being the equivalent of three months gross salary
- 2.Interest at court rates from date of judgment till payment in full
- 3.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gordon James Oyugi v Gulsan Construction [2019] KEELRC 87 (KLR)", Case Analysis (2019). Cause No 1619 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/87/eng@2019-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.