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ELRCPartially AllowedCause No. 9 of 2017· [2019] KEELRC 363 (KLR)

Silas Kipkirui Chesire v Board of Governors Kabimoi High School [2019] KEELRC 363 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
17 October 2019
MMM. Mbaru
1,859 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 upheld a school worker's dismissal for absconding duty, awarding him only Ksh.5,604 in underpayments because he was given a fair hearing before dismissal.

What this practically means

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Executive summary

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The claimant, employed by the respondent school as a general worker/groundsman from around 2011 until October 2015, claimed underpayments of Ksh.370,381.00, overtime pay of Ksh.115,731.05 for allegedly coaching football, unpaid October 2015 wages of Ksh.15,529.35, severance pay of Ksh.540,464.78, and damages for unfair termination. He alleged his termination was without warning, disciplinary hearing, notice or reasons. The respondent denied the claims, contending the claimant was summarily dismissed for deserting duty for over a month from July to August 2015, that he was invited before the Board of Management on 14 October 2015 where he admitted absence and apologised, and that the alleged soccer coach appointment letter was fraudulent and not procedurally issued. The respondent proved payment of October 2015 wages of Ksh.12,358.00. The court held that absence without permission is a ground for summary dismissal under section 44(4)(a) of the Employment Act, 2007, subject to a hearing under section 41(2), which was accorded. Comparing wages against the applicable Wage Orders, the court found underpayment only for 2012/2013, totalling Ksh.5,604.00. The overtime claim failed as the coaching appointment contradicted the running groundsman contract; the severance claim was dismissed as not founded under section 40; and no damages were due since the dismissal was procedural. The court allowed the claim only in part, awarding Ksh.5,604.00, with each party to bear its own costs.

Key legal issues

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01

Whether the summary dismissal for desertion of duty was fair and procedural

Holding

The dismissal was lawful and procedural because the claimant was invited before the Board of Management on 14 October 2015 and given a hearing, where he admitted absence and tendered an apology.

Reasoning

Absence from work without due cause and permission is a ground for summary dismissal under section 44(4)(a) of the Employment Act, 2007. Section 41(2) requires that the employee be given notice and a hearing before such dismissal. The claimant was invited before the Board, admitted desertion and apologised; due process preceded the sanction of summary dismissal, so his reliance on unfair-termination authorities fails.

p. 2
02

Whether the claimant was underpaid

Holding

Only the year 2013 yielded an underpayment of Ksh.5,604.00; for all other periods the claimant was paid at or above the applicable Wage Order minimum wage.

Reasoning

The court compared the claimant's actual wages against the Wage Orders applicable to a Groundsman in Eldama Ravine for 2011/12 to 2015. For 2011/12, 2013/2014, 2014/2015 and May to October 2015, the wages paid were within or above the legal minimum. Only 2012/2013 showed a shortfall of Ksh.467 per month, aggregating to Ksh.5,604.00.

p. 2
03

Whether the claimant was entitled to overtime pay for coaching football

Holding

The claim for overtime failed because the alleged appointment as soccer coach was suspect and contradicted his ongoing employment as groundsman.

Reasoning

The respondent contested the letter dated 17 March 2014 appointing the claimant soccer coach, noting it was not procedurally issued or signed by the principal. The court found that appointing the claimant as coach 'with immediate effect' while he held a running contract as groundsman created a contradiction; one appointment would have to give way, and the alleged second appointment could not support a claim for overtime.

p. 3

Legal principles established

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  • Absence from work without due cause and permission of the employer is a ground for summary dismissal under section 44(4)(a) of the Employment Act, subject to the employee being given notice and a hearing under section 41(2).

Court orders

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  1. 1.Payment of the sum of Ksh.5,604.00 in underpayment to the claimant
  2. 2.Dismissal of all other claims (overtime, October 2015 wage, severance pay, damages for unfair termination)
  3. 3.Each party to pay own costs

Authorities

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Legislation

  • Employment Actsection 44(4)(a)
  • Employment Actsection 41(2)
  • Employment Actsection 40

Cases cited (2)

  • David Gichana Omuya versus Mombasa Maize Millers Limited
    [2014] eKLR
  • Anthony Mkala Chitavi versus Malindi Water & Sewerage Co. Limited
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act, 2007)

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, "Silas Kipkirui Chesire v Board of Governors Kabimoi High School [2019] KEELRC 363 (KLR)", Case Analysis (2019). Cause No. 9 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/363/eng@2019-10-17

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