Mwachupa Haranga Ndurya v Krystalline Salt Limited [2019] KEELRC 418 (KLR)
The bottom line
#A Kenyan employer that abandons an injured worker on sick leave, without valid reason, must pay 12 months' salary for unfair termination.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant deserted or was terminated
The Court found the Claimant did not desert; termination was at the instance of the Respondent without valid reason under Section 43.
The Respondent directed the Claimant to its designated healthcare provider, knew he was under treatment, and was aware further treatment could enable him to resume duty. The Respondent's conduct between February and October 2015 showed it was no longer patient and desired to do away with him. His inability to fund further treatment was used against him, and the Claimant was left without any word about his contract. Desertion was therefore not established.
Reasonable accommodation of an injured employee
The Respondent failed to extend any reasonable accommodation to the Claimant.
The Claimant had worked for 7 years with an unblemished record and his contract had repeatedly been renewed. The Court found there was no reason to show renewal would not continue except for the accident and injury. The Respondent made no attempt to accommodate the Claimant's need for further treatment, including the recommended implant, and instead treated his failure to heal as desertion.
Access to medical records and credibility of the Respondent's defence
The Court found the Respondent's claim of lack of medical evidence not credible.
The Respondent had referred the Claimant to Avenue Healthcare, its designated provider, within days of the accident. The x-ray report by Dr. Umara dated 23rd February 2015 was accessible through that facility. Yet the Respondent wrote to the Labour Office complaining of non-availability of medical evidence without ever writing to Avenue Healthcare. The Court found it inconceivable that the Respondent lacked access to the Claimant's medical records.
Statutory sick leave entitlement
Section 30 of the Employment Act entitles an employee to 7 days' sick leave with full pay and 7 days with half pay per 12 consecutive months; the Respondent did not follow this law.
The Claimant received full salary for March and half salary for April 2015 and nothing more, which did not comply with Section 30. However, since the Claimant withdrew the prayer for unpaid salary, the Court found nothing turned on the item.
Legal principles established
#- An employer must show a valid reason justifying termination under Section 43 of the Employment Act 2007, and cannot treat an employee's inability to fund further treatment as desertion.
- An employer must extend reasonable accommodation to an injured employee who is under treatment at a facility designated by the employer.
- Where an employee is directed to an employer's designated healthcare facility, the employer is taken to have access to the employee's medical records.
Court orders
#- 1.The Respondent shall pay the Claimant equivalent of 12 months' salary in compensation for unfair termination at Kshs. 268,716 and 1 month salary in lieu of notice at Kshs. 22,393 – total Kshs. 291,109
- 2.Costs to the Claimant
- 3.Interest allowed at 14% per annum from the date of Judgment till payment is made in full
- Jurisdiction invoked
- Employment and Labour Relations Court, Employment Act 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwachupa Haranga Ndurya v Krystalline Salt Limited [2019] KEELRC 418 (KLR)", Case Analysis (2019). Cause No 8 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/418/eng@2019-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.