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ELRCPartially AllowedCause No. 485 of 2016· [2019] KEELRC 1007 (KLR)

Rosemary Angaliwa v Tidy Site Services Limited [2019] KEELRC 1007 (KLR)

Employment and Labour Relations Court of Kenya
10 July 2019
MMM. Mbaru
1,243 words in judgment
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The bottom line

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A Kenyan court awarded a cleaner her unpaid wages but refused unfair termination compensation because she returned to work without the proper medical certificate.

What this practically means

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Executive summary

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The claimant, employed as a cleaner from 14th December 2011 at a monthly wage of Kshs.5,500 (later Kshs.6,500), sued the respondent seeking terminal dues for untaken annual leave over four years, underpayments, notice pay, and compensation for unfair termination, totalling Kshs.210,528.25. She fell sick on 17th March 2016 and was granted two weeks off on a medical note; she was never formally resumed on full-time employment, was told on 1st May 2016 there was no work, and was briefly engaged on temporary terms in August and September 2016. The respondent maintained she abandoned work, was replaced due to contractual obligations to clients, and was later paid Kshs.19,759.00 following a labour office tabulation, under a certificate of payment dated 3rd November 2016. The court held that under sections 30 and 34 of the Employment Act, 2007 a sick employee is entitled to paid time off but must produce a proper medical certificate on return; the medical note was not equivalent, and the claimant's continued unexplained absence meant employment terminated at her own instance, with February and March wages covering notice pay. However, the respondent breached the minimum wage orders throughout the engagement; the defence of youth of the business was rejected. Underpayments were computed at Kshs.129,526.90. Judgment was entered for that sum less the Kshs.19,759.00 already received, with 50% costs to the claimant.

Key legal issues

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01

Sickness leave and the medical certificate requirement under sections 30 and 34 of the Employment Act

Holding

The employer lawfully granted time off with pay for illness, but the claimant's failure to submit a proper medical certificate upon return meant her continued absence removed her from the workplace; employment effectively terminated at her own instance

Reasoning

Sections 30 and 34 of the Employment Act entitle a sick employee to time off with full pay, but the employee must justify the absence with a medical certificate from a recognised medical institution. The claimant produced only a medical note granting two weeks off, not the required certificate. Her continued unexplained absence therefore ended the employment, with the wages paid to end of March 2016 covering notice pay.

p. 2
02

Underpayment below the statutory minimum wage

Holding

The respondent was in breach by paying Kshs.5,500 instead of the applicable minimum wage; the court computed underpayments of Kshs.129,526.90 for the period 2011 to February 2016

Reasoning

The court applied the wage orders for 2011 to 2016 and found the claimant was consistently paid below the minimum wage. The defence of being young in business was rejected. The court tabulated the shortfall year by year, totalling Kshs.129,526.90, and noted the labour officer's advice to pay Kshs.140,486.00 was not far out, but awarded the computed figure less the Kshs.19,759 already paid.

p. 2

Legal principles established

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  • A sick employee is entitled to time off with full pay but must, upon return, produce a medical certificate from a recognised medical institution; a medical note granting time off is not equivalent to the statutory medical certificate
  • An employer cannot pay an employee below the prescribed minimum wage regardless of the state or youth of the business

Court orders

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  1. 1.Judgment entered for the claimant for underpayments of Kshs.129,526.90 less Kshs.19,759.00 already received and acknowledged by the claimant
  2. 2.The claimant awarded 50% of her costs

Authorities

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Legislation

  • Employment Act, 2007section 30
  • Employment Act, 2007section 34

Cases cited (2)

  • Anne Wairimu Kimani versus Kenya Agricultural Livestock Research Organisation (KALRO)
    [2017] eKLR
  • Dorothy Ndungu versus Machakos University & others
    [2016] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act, 2007)

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, "Rosemary Angaliwa v Tidy Site Services Limited [2019] KEELRC 1007 (KLR)", Case Analysis (2019). Cause No. 485 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1007/eng@2019-07-10

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