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ELRCPartially AllowedCause 430 of 2014· [2019] KEELRC 2232 (KLR)

Wilfred Otako Sewe v Clayworks Limited [2019] KEELRC 2232 (KLR)

Employment and Labour Relations Court
15 February 2019
1,431 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer who fired a sick employee without a hearing lost — proper procedure and attendance records are essential before any dismissal.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 1983 and rising from General Labourer to Personnel Officer with a last salary of Kshs. 17,000, was summarily dismissed on 12th October 2011 for alleged absenteeism of 60 working days from 2nd January 2011. He claimed three months' notice pay, refund of 52 days' salary irregularly deducted, an early retirement package of Kshs. 2,652,000, declarations and damages. The Respondent admitted the employment but defended the dismissal on grounds of frequent absenteeism and drunkenness, contending the Claimant was in management and outside the CBA. The court found the termination letter itself acknowledged the Claimant was on sick leave, so he could not be absent without leave or lawful cause justifying summary dismissal under Section 44(4). No attendance register was availed despite memos referring to a Daily Attendance Register. There was no disciplinary hearing, no show-cause letter and no hearing as required by Section 41 of the Employment Act 2007. Termination was unfair on both substantive and procedural grounds. However, the Claimant had already received Kshs. 295,790 in terminal benefits including contractual one month's notice pay; the early retirement package claim had no legal basis, and damages for breach and mental anguish were rejected as statutory compensation was sufficient. The court declared the termination unfair, awarded 6½ months' salary compensation of Kshs. 110,500 plus Kshs. 34,000 refund of irregular deductions, made no order on costs, and allowed interest at 14% per annum from the date of judgment until payment in full.

Key legal issues

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01

Procedural fairness in termination

Holding

The termination was procedurally unfair as there was no disciplinary hearing, no show-cause letter, and no hearing as required under Section 41 of the Employment Act

Reasoning

The court found no record of any disciplinary hearing on any allegation, whether absenteeism or alcoholism. No letter to show cause was issued. The requirements of Section 41 of the Employment Act 2007 are mandatory. Termination therefore failed the minimum standards of fairness under Sections 41, 43 and 45, and was unfair both procedurally and substantively.

p. 2
02

Substantive justification for termination (absenteeism)

Holding

The Respondent failed to prove that the Claimant was absent for 60 days without leave or lawful cause; no attendance register was produced

Reasoning

The memos referred to a Daily Attendance Register which was never availed to the Court. The letter of termination itself acknowledged the Claimant was on sick leave at the time of termination. Prior warnings and salary deductions for days absent were, if the allegations were true, sufficient punishment already, undermining summary dismissal.

p. 2
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Relief: compensation for unfair termination and refund of deducted salary

Holding

The Claimant was awarded 6½ months' salary (Kshs. 110,500) for unfair termination and Kshs. 34,000 refund of irregularly deducted salary

Reasoning

The Claimant was already paid Kshs. 295,790 in gratuity, leave and notice pay, and was in management, not subject to the CBA. Deduction of 52 days' salary had no evidential foundation. The equitable and statutory remedy was 6½ months' salary compensation plus the refund of the irregular deduction.

p. 3

Legal principles established

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  • An employee on sick-off leave cannot be absent without leave or lawful cause so as to justify summary dismissal under Section 44(4) of the Employment Act
  • Termination without a show-cause letter or disciplinary hearing breaches the mandatory procedural requirements of Section 41 of the Employment Act
  • An employer alleging employee absenteeism must avail the Daily Attendance Register as evidence of the absence

Court orders

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  1. 1.Declaration that termination was unfair
  2. 2.Respondent to pay the Claimant the equivalent of 6½ months' salary in compensation for unfair termination at Kshs. 110,500 and Kshs. 34,000 in salary refund, total Kshs. 144,500
  3. 3.No order on the costs
  4. 4.Interest at 14% per annum from the date of Judgment till payment is made in full

Authorities

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Legislation

  • Employment ActSection 44(4)
  • Employment Act 2007Section 41
  • Employment ActSections 41, 43 and 45
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 44 and 45)

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, "Wilfred Otako Sewe v Clayworks Limited [2019] KEELRC 2232 (KLR)", Case Analysis (2019). Cause 430 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2232/eng@2019-02-15

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