Thomas Bacha Ndungu v Kiu Construction Company Limited [2020] KEELRC 395 (KLR)

The Claimant was suspended indefinitely on 6th July 2015. His advocates wrote twice seeking clarification and the Respondent never responded. The termination letter the Respondent relied on was dated 10th October 2015, long after the demand letters, so the court rejected the claim that a termination letter had issued earlier. Suspension without pay and without communication of continued employment was treated as termination.

Although the Claimant testified he had been sent to Sagana to ferry a machine, his own written response to the show cause notice told a different story and contained an apology for absconding on 4th July 2015. The court preferred the written admission over the oral testimony, finding the Claimant guilty of absconding duty on his own admission, which constituted a valid and fair reason for summary dismissal.

Section 41 requires the employer to explain the reasons in a language the employee understands, in the presence of a colleague or shop floor union representative, and to hear and consider representations. The evidence that the Claimant was never given such an opportunity was uncontroverted. The Respondent's issuance of a show cause notice and receipt of a response fell short of the mandatory procedure, rendering the dismissal unfair.

Notice pay was awarded as the Respondent produced no proof of payment. Compensation was fixed at five months considering section 49(4) factors. Leave was awarded at 119 days on 21 days per year because the Respondent's assertion of leave taken was unsupported. Overtime was computed for the 3-month Mwingi posting at 88 hours per week above the 52-hour statutory maximum, at 1.5 times the hourly rate, since the Claimant could not substantiate hours at other stations or double-time claims.