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ELRCPartially AllowedCause No. 66 of 2017· [2019] KEELRC 2575 (KLR)

Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers v Turi Sulguta Secondary School [2019] KEELRC 2575 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
7 March 2019
2,225 words in judgment
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The bottom line

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A Kenyan court ruled a school unfairly fired a sick night watchman without a hearing, awarding him over Ksh. 166,000 but refusing reinstatement.

What this practically means

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Executive summary

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The claimant union, recognised by the respondent school under a recognition agreement and CBA, sued on behalf of grievant Joseph Eibach Ekai, employed as a night watchman. The grievant developed asthma and produced medical letters recommending work in a warm environment or day duty; the respondent neither allocated day duties nor replied to follow-up correspondence. The defence was that the grievant deserted duty from 22nd October 2014, amounting to gross misconduct justifying dismissal, and that the small school could not budget for two guards. The court found the grievant had submitted his medical letters and was awaiting the respondent's decision; before treating his absence as desertion under section 44(4), the respondent was obliged to issue a notice to show cause and afford a hearing under section 41(2). Having failed to do so, the termination was unfair under section 45 of the Employment Act. Reinstatement was refused as inappropriate after over three years and given the grievant's medical condition. Rejecting the outdated 1986 CBA, the court applied General Wage Orders and, in the absence of the respondent's records under section 10(6) and (7), awarded underpayments and house allowance, payment in lieu of annual leave, and one month's wage as compensation and notice pay. Claims for public holiday pay and uniforms were declined for lack of particulars. Judgment was entered for the claimant with each party bearing own costs, delivered at Nakuru on 7th March 2019 by M. Mbaru J.

Key legal issues

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01

Whether termination of the grievant's employment was unfair

Holding

The termination was unfair, devoid of fair procedure and contrary to section 45 of the Employment Act; the respondent failed to issue a show-cause notice or hold a hearing before treating the grievant's absence as desertion

Reasoning

The grievant submitted medical letters recommending day duty in a warm environment and awaiting the respondent's decision. The Board later decided he had deserted from 22nd October 2014 and terminated him without notice or hearing. Section 44(4) with section 41(2) required notice to show cause and a hearing before summary dismissal, which was not done, rendering the termination unfair under section 45.

p. 2
02

Whether reinstatement was appropriate

Holding

Reinstatement was refused as inappropriate after over three years and given the grievant's medical condition

Reasoning

Reinstating the grievant to the same night-duty conditions that caused his asthma would itself be an injustice; the employment had ended in March 2015 and over three years had passed, and the claimant gave the remedy little attention in evidence and submissions.

p. 3
03

Entitlement to underpayments, house allowance and leave pay absent employer records

Holding

In the absence of employment records under section 10(6) and (7), the court applied General Wage Orders to award underpayments, house allowance at 15%, and payment in lieu of untaken annual leave

Reasoning

The respondent produced no records showing wages paid, house allowance, leave taken or holiday pay. The outdated 1986 CBA was rejected in favour of statutory minimum wages and 15% house allowance, producing assessments of underpayments, leave pay at the last due wage, and notice pay plus one month's compensation.

p. 3

Legal principles established

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  • Issuance of a letter of appointment converts casual employment into protected full-time employment with rights under the Employment Act
  • An employee absent on sick leave must notify the employer, and employer approval of such absence is mandatory
  • Before summary dismissal for desertion under section 44(4), the employer must issue a notice to show cause and afford a hearing under section 41

Court orders

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  1. 1.A declaration that employment was terminated without due process and therefore unfair
  2. 2.Compensation and notice pay awarded at Ksh. 10,116.15
  3. 3.Underpayments and house allowances awarded at Ksh. 135,296.75
  4. 4.Payment in lieu of annual leave Ksh. 21,243.90
  5. 5.Each party shall bear own costs

Authorities

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Legislation

  • Employment Actsections 8, 9, 10(6) and (7), 28, 30, 34, 37, 41(2), 44(4), 45
  • Basic Education Act
  • Regulation of Wages (General) (Amendment) Order, 2011

Cases cited (2)

  • KUDHEIHA versus Murang'a High School
    [2011] eKLR
  • Dorothy Ndung'u versus Machakos University
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over disputes between a registered trade union and an employer under the Employment Act, 2007 and applicable CBA

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, "Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers v Turi Sulguta Secondary School [2019] KEELRC 2575 (KLR)", Case Analysis (2019). Cause No. 66 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2575/eng@2019-03-07

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