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ELRCDismissedCause No. 284 of 2017· [2019] KEELRC 1062 (KLR)

Kenya Tertiary & Schools Workers Union v Ananda Marga Academy [2019] KEELRC 1062 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
11 July 2019
2,070 words in judgment
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The bottom line

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A Kenyan court upheld a teacher's summary dismissal because a suspicious sick note and sabotage of school letters proved gross misconduct under the Employment Act.

What this practically means

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Executive summary

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The Kenya Tertiary & Schools Workers Union sued on behalf of its member, Meshack Osero Onchong'a, a teacher employed by Ananda Marga Academy from 12th May 1997 until his summary dismissal on 12th October 2015, claiming terminal dues including October 2015 wages, notice pay, salary underpayments against TSC schedules, service pay for 1997-2001, twelve months' compensation for wrongful dismissal, and general damages, contending the dismissal breached sections 41 and 43 of the Employment Act and followed his sickness absence. The respondent, a private non-profit school in Kangemi, denied wrongful dismissal, asserting the grievant was absent without permission, held double NHIF cover suggesting other employment, forged his teaching certificate and sick leave sheet, sabotaged fee reminder letters meant for parents causing loss of 21 students, and had been given a hearing before dismissal. The court framed two issues: whether the dismissal was wrongful, and whether the remedies sought were available. It found the grievant's admission of absence unjustified because the sick off sheet was dated a day before the alleged illness and was stamped by a different entity, and was not a valid medical certificate under section 34; the sabotage evidence stood uncontroverted. Summary dismissal was justified under section 44(4)(a). The underpayment claim failed as private schools have no wage guidelines and the contract provided a consolidated wage; the service pay claim was time-barred under section 90; notice pay, compensation and general damages were refused. The entire claim was dismissed with costs to the respondent assessed at Ksh.50,000.00, payable within 60 days, and the union was admonished to counsel the grievant to stop alleged threats against the respondent.

Key legal issues

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01

Whether the summary dismissal of the grievant was wrongful

Holding

The dismissal was justified; the grievant's absence was unexplained (the sick off sheet was forged, dated before the alleged illness, and stamped by a different entity), and his sabotage of school activities amounted to gross misconduct under section 44 of the Employment Act

Reasoning

The grievant's letter admitting absence gave sickness as the reason, but the sick off sheet was dated 8th June 2015, a day before the alleged illness, and was issued by an entity different from the one that stamped it, making it foundationally unacceptable. No medical certificate from a recognised facility accompanied it. The sabotage of fee reminder letters stood uncontroverted as the grievant offered only mere denials. Together these amounted to fundamental breach justifying summary dismissal under section 44(4)(a).

p. 3
02

Whether the claim for salary underpayment based on TSC schedules could succeed

Holding

The claim fails; private sector schools have no wage guidelines and the grievant was paid per his contract which provided a consolidated wage

Reasoning

The court distinguished TSC wage schedules from private sector employment, holding that in private schools there are no applicable wage guidelines and the parties are bound by the contractual consolidated wage clause.

p. 3
03

Whether the service pay claim for 1997 to 2001 was available

Holding

The claim is time-barred under section 90 of the Employment Act and fails; the respondent had also paid statutory dues

Reasoning

Section 90 requires employment claims to be brought within three years. Claims relating to 1997 to 2001 were way past that period. Additionally, the evidence showed the respondent had paid statutory dues at the time of dismissal.

p. 3

Legal principles established

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  • An employee absent due to sickness must present a medical certificate from a recognised medical facility; a sick off sheet not so accompanied is unacceptable
  • Absenteeism without justifiable explanation after notice to explain justifies summary dismissal under section 44(4)(a) of the Employment Act

Court orders

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  1. 1.The claimant's case is found without merit and is dismissed with costs to the respondent
  2. 2.Costs assessed by the court at Ksh.50,000.00 to be paid within 60 days
  3. 3.The claimant as representative of the grievant is enjoined to counsel the grievant to stop any threats against the respondent to avoid further harm to the respondent and its operations

Authorities

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Legislation

  • Employment Act, 2007sections 30, 34, 41, 43, 44, 44(4)(a), 90
  • Basic Education Actregistration of private educational institutions

Cases cited (2)

  • Dorothy Ndungu versus Machakos University
    [2015] eKLR
  • Jairus Ochieng Ojwang versus Bridge International Academies
    Cause No.496 of 2017 (Nakuru)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over a trade union dispute on wrongful dismissal of a grievant

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, "Kenya Tertiary & Schools Workers Union v Ananda Marga Academy [2019] KEELRC 1062 (KLR)", Case Analysis (2019). Cause No. 284 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1062/eng@2019-07-11

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