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ELRCPartially AllowedCause No. 431 of 2016· [2019] KEELRC 618 (KLR)

David Muguna v Board of Management Gibea Jerusalem Academy [2019] KEELRC 618 (KLR)

Employment and Labour Relations Court of Kenya
26 September 2019
1,712 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The claimant, a teacher employed by the respondent school at Moi's Bridge on 10th May 2015, sued for notice pay, leave pay, severance pay, May 2016 wages, house allowances, unremitted NHIF deductions and compensation following termination of his employment on 26th May 2016. He had been granted compassionate leave on 20th May 2016 to attend the burial of his step-brother scheduled for 25th May; the burial took place a day earlier and he returned to work on 24th May. The respondent's management demanded a burial permit as proof and the deputy principal directed him to stop working until he produced it. The respondent maintained that the claimant deserted duty. The court framed two issues: whether there was unfair termination, and whether the remedies sought were due. Holding that compassionate leave is a foreseeable good cause for absence but that the employer may demand proof, the court found that the claimant's failure to produce the burial permit left the respondent at liberty to invoke summary dismissal under section 44 of the Employment Act, 2007; no unfair termination was established. On remedies, because the respondent produced no work records, the May 2016 wage was awarded. Notice pay, severance pay, annual leave pay (covered by school breaks), house allowances (wage exceeded the applicable minimum under Legal Notice No.117 of 2015), NHIF dues (payable to the statutory body, not the employee) and compensation were all declined. The claims were dismissed save for the May 2016 wage of Ksh.14,700.00 payable within 30 days with interest at court rates if unpaid, subject to section 49(2) of the Employment Act, with each party bearing own costs. Judgment delivered at Nakuru on 26th September 2019 by M. Mbaru J.

Key legal issues

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01

Whether the termination of the claimant's employment was unfair

Holding

No unfair termination was established; the claimant's failure to produce proof of the burial justified the respondent's action, including summary dismissal under section 44 of the Employment Act, 2007.

Reasoning

The court held that compassionate leave is good cause for absence, but the employer may demand proof. Drawing an analogy with maternity leave under section 29 of the Employment Act, where proof such as a medical certificate is required, the employer could similarly require proof of the need for compassionate leave. The claimant said burial permits are kept by parents, but the court found he could have secured the evidence with similar ease. Having failed to produce the required proof, he could not blame the respondent for frustrating his own employment, leaving no basis for an unfair termination claim.

p. 2
02

Whether the May 2016 wages were due

Holding

The wage due for May 2016 (26 days) was awarded because the respondent produced no work records evidencing payment after 26 May 2016.

Reasoning

The respondent did not produce any employment work records. Under sections 10(6) and (7) read with section 20 of the Employment Act, 2007, such records would have been sufficient proof of payments made. In their absence, the court found the May 2016 wage for 26 days due and awarded it, though the judgment states the figure as Ksh.14,740.00 in the analysis and Ksh.14,700.00 in the final orders.

p. 2
03

Whether annual leave, house allowance and severance pay claims were due

Holding

All declined; school breaks covered leave, the wage paid exceeded the applicable minimum wage, and severance pay is only due in a redundancy.

Reasoning

The respondent, being an educational institution, provides breaks in April, August and December, so claiming annual leave over and above these would be unjust enrichment. The claimant's wage of Ksh.17,000.00 exceeded the minimum wage for Moi's Bridge under Legal Notice No.117 of 1st May 2015, making a house allowance claim unjust enrichment. Severance pay under section 40 of the Employment Act applies only to redundancy, which this case was not.

p. 2

Legal principles established

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  • Compassionate leave is a foreseeable good cause for absence from work, but the employer may demand proof of the need for it, and where proof is not readily available the employee should reasonably request time to secure it.
  • Where an employee on leave fails to prove the need for the absence, the employer may resort to summary dismissal under section 44 of the Employment Act, 2007.
  • Unremitted statutory deductions such as NHIF are payable to the statutory body and not to the employee, so an employee cannot claim such monies directly.

Court orders

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  1. 1.The claims made are dismissed save for payment of the wage due for May, 2016 at Ksh.14,700.00
  2. 2.The said sum to be paid within 30 days from the date of judgment, failing which to attract interest at court rates until paid in full
  3. 3.Such monies subject to the provisions of section 49(2) of the Employment Act, 2007
  4. 4.Each party shall bear own costs

Authorities

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Legislation

  • Employment Act, 2007section 29(3)
  • Employment Act, 2007section 29(6)
  • Employment Act, 2007section 30
  • Employment Act, 2007section 44
  • Employment Act, 2007section 40
  • Employment Act, 2007section 10(6) and (7)
  • Employment Act, 2007section 20
  • Employment Act, 2007section 49(2)
  • Legal Notice No.117 of 1st May, 2015minimum wage order
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment cause)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "David Muguna v Board of Management Gibea Jerusalem Academy [2019] KEELRC 618 (KLR)", Case Analysis (2019). Cause No. 431 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/618/eng@2019-09-26

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