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ELRCPartially AllowedCause No 2582 of 2016· [2020] KEELRC 511 (KLR)

Silas Wandera v Principal Bristar Girls High School [2020] KEELRC 511 (KLR)

Employment and Labour Relations Court
17 September 2020
OMONESMUS N MAKAU
2,503 words in judgment
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The bottom line

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A Kenyan court ruled that even a worker who abandons his job must be given a hearing before dismissal, or the firing is unfair.

What this practically means

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Executive summary

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The Claimant, a security guard employed by the Respondent school from August 2011, sued alleging that his November 2015 termination was substantively and procedurally unfair and that his terminal benefits were withheld. He sought a declaration of wrongful termination, 12 months' salary compensation, one month's pay in lieu of notice, service pay and costs. The Respondent admitted the employment but asserted that the Claimant absconded after being issued a notice to show cause over an alleged attempted theft of students' bags on 29.10.2015, and prayed for dismissal of the suit. The Claimant denied the theft allegation and service of the show cause letter, noting that no occurrence book entry was produced and no colleague testified. The court framed two issues: whether the dismissal was unfair and wrongful, and whether the Claimant was entitled to the reliefs sought. On substance, the court found the Claimant had not proved he worked after 29.10.2015, so the Respondent proved the reason for termination (abscondment) under sections 43(1) and 45(2). On procedure, however, the Respondent admitted she never called the Claimant for a hearing or followed up on him; abscondment notwithstanding, section 41 required a hearing, and desertion claims require demonstrated efforts to reach the employee. The termination was therefore procedurally unfair. The court awarded one month's pay in lieu of notice and six months' salary as compensation (Kshs. 67,900/- total), considering four years of service and the Claimant's contributory misconduct. Service pay was refused as he was an NSSF member. Judgment was entered for the Claimant with costs and interest, subject to statutory deductions.

Key legal issues

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01

Validity of the reason for dismissal (substantive fairness)

Holding

The respondent proved on a balance of probability that the claimant absconded duties from 30.10.2015, discharging her burden under sections 43(1) and 45(2)

Reasoning

The claimant did not adduce documentary evidence or call any witness to show he continued working after 29.10.2015, nor that he was on official duty or leave from 30.10.2015. RW1's evidence that he absconded was therefore unrebutted, and the employer proved the reason for termination.

p. 3
02

Procedural fairness under section 41 of the Employment Act

Holding

The respondent failed to accord the claimant a hearing before dismissal, rendering the termination unfair and wrongful

Reasoning

Although absconding amounts to gross misconduct under section 44(4)(a), the employer admitted she never followed up the claimant or called him to a hearing. The court held that no punishment may be inflicted without following the mandatory section 41 procedure, and an employer alleging desertion must show efforts to reach the employee.

p. 3
03

Entitlement to remedies

Holding

Claimant awarded one month's salary in lieu of notice and six months' salary compensation under section 49; service pay refused due to NSSF membership

Reasoning

Having found the termination unfair, the court exercised discretion under section 49, taking into account four years of service and the claimant's contributory misconduct, awarding six rather than twelve months' compensation. Service pay was barred because NSSF deductions were made, per section 35 of the Employment Act.

p. 3

Legal principles established

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  • For a termination to pass the fairness test there must be both substantive justification and procedural fairness
  • Even where an employee absconds or deserters duty, the employer must still follow the mandatory hearing procedure in section 41 of the Employment Act before dismissal
  • An employer claiming desertion must demonstrate efforts made to get the employee to resume duty

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent in the sum of Kshs. 58,200/- being 6 months' salary compensation for unfair termination
  2. 2.One month's salary in lieu of notice of Kshs. 9,700/- awarded; total Kshs. 67,900/-
  3. 3.The award is subject to statutory deductions and in addition to costs and interest at court rate from the date of judgment

Authorities

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Legislation

  • Employment Act, 2007Sections 35, 41, 42(1), 43, 44(3), 44(4), 45, 45(2), 49
  • Evidence ActSection 109
  • ELRC Procedure RulesRule 28(3)

Cases cited (7)

  • Kenya Union of Comercial Food and Allied Workers Vs Meru North Farmers Sacco Limited
    (2013) eKLR
  • Mary Chemweno Kiptui Vs Kenya Pipeline Company Limited
    [2014] eKLR
  • Charles Ochieng Ogola Vs Bhole Kondele Limited
    (2017) eKLR
  • Joseph Nzioka Vs Smart Coating Limited
    (2017) eKLR
  • Joseph Njoroge Kiama Vs Summer Limited
    (2014) eKLR
  • Walter Ogal Anuro –v- Teachers Service Commission
    (2013) eKLR
  • Felistas Acheha Ikatwa Vs Charles Peter Otieno
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim)

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, "Silas Wandera v Principal Bristar Girls High School [2020] KEELRC 511 (KLR)", Case Analysis (2020). Cause No 2582 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/511/eng@2020-09-17

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