Tailors and Textile Workers Union v Global Apparel (EPZ) [2019] KEELRC 2481 (KLR)
The bottom line
#A Kenyan court ruled that firing a mother for rushing her sick child to hospital, without a hearing, was unfair and awarded her compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the grievant's absence amounted to gross misconduct under section 44(4)(a) of the Employment Act
The absence was for lawful cause; a parent attending to a sick child has a justifiable and lawful reason for absence, so summary dismissal lacked substantive justification
The court accepted the grievant's testimony that her child was presented at the workplace gate and that permission was denied, leaving her to leave at lunchtime without a gate pass. Discharge Notes and a Clinical Abstract confirmed hospital admission from 4th to 10th July 2010. RW1 admitted he knew she had a sick child and that emergencies were handled immediately; an infant's illness is an emergency. The dismissal letter's assertion that efforts to reach her through her husband bore no fruit was contradicted by the fact the letter itself was delivered through the husband, and by a note from Kitengela Medical Services to RW1.
Whether the dismissal complied with the procedural requirements of section 41 of the Employment Act
The respondent failed to comply with fair procedure; the grievant was dismissed without any inquiry or opportunity to defend herself
The court found that the grievant was not issued a show cause letter and was not heard before termination. The dismissal was effected by delivering the summary dismissal letter to her husband while she was in hospital with her admitted child, and the respondent did not prove any effort to reach her personally. Absence of a hearing under section 41 rendered the dismissal procedurally unfair regardless of the alleged misconduct.
Whether reinstatement was available as a remedy
Reinstatement was refused because it is statutorily time-limited to 3 years and confined to exceptional circumstances
Under section 12(3)(vii) of the Employment and Labour Relations Court Act, reinstatement is available only within 3 years from the date of termination, and section 49(4)(d) limits it to very exceptional circumstances. The grievant had been out of employment for over 3 years and pleaded no exceptional circumstances, so the court turned to the alternative terminal dues and compensation.
What terminal dues and compensation the grievant was entitled to
The grievant was awarded salary for days worked, notice pay, leave dues, gratuity, underpayment based on the statutory consolidated minimum wage, and 10 months' salary compensation under section 49
Having found the absence justified, the court awarded salary up to 6th July 2010 (Kshs.2,220.20 with house allowance), notice pay of Kshs.9,660, 12 days' leave dues of Kshs.3,877 plus pro rata leave travelling allowance of Kshs.500, gratuity at 16 days' salary per year for 8 years (Kshs.47,556.90), and underpayment of Kshs.30,576 computed on the consolidated minimum wage for a machine operator. For compensation, the court considered length of service, the circumstances of termination and her lack of terminal benefits, awarding 10 months' salary (Kshs.96,600) rather than the 12 months claimed.
Legal principles established
#- A mother leaving work without a gate pass to take her sick child to hospital has lawful cause for absence from the workplace, negating gross misconduct under section 44(4)(a) of the Employment Act
- Summary dismissal without a hearing under section 41 of the Employment Act is procedurally unfair
Court orders
#- 1.Declaration that the dismissal of the grievant was unfair both procedurally and substantively
- 2.Reinstatement denied; award of salary for days worked up to 6th July 2010 of Kshs.2,220.20 inclusive of house allowance
- 3.Payment in lieu of notice of Kshs.9,660
- 4.Payment in lieu of annual leave of Kshs.3,877 (12 days) and pro rata leave travelling allowance of Kshs.500
- 5.Gratuity at 16 days' salary per year worked for 8 years, Kshs.47,556.90
- 6.Award for underpayment of Kshs.30,576 based on consolidated wage for 12 months
- 7.Compensation of 10 months' salary at the correct statutory consolidated minimum rate of pay, Kshs.96,600
- 8.Issuance of a certificate of service to the grievant
- 9.Respondent to pay the claimant costs assessed at Kshs.50,000 to cover reasonable expenses and disbursements
- 10.The decretal sum shall accrue interest from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court Act, section 12(3)(vii); Employment Act, sections 41, 44, 45, 47(5), 49(4)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tailors and Textile Workers Union v Global Apparel (EPZ) [2019] KEELRC 2481 (KLR)", Case Analysis (2019). Cause No 754 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2481/eng@2019-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.