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ELRCPartially AllowedCause No. 354 of 2017· [2020] KEELRC 962 (KLR)

Elly Ayieko Gwara v Evans Sunrise Mdical Center [2020] KEELRC 962 (KLR)

Employment and Labour Relations Court of Kenya
4 June 2020
MMM. Mbaru
2,697 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan employer that suspends an employee and then never gives written instructions or work risks paying compensation for unfair termination.

What this practically means

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Executive summary

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The claimant, employed orally by the respondent in June 2000 as a security officer and later moved to the maintenance section, was suspended on or about 4 May 2014 following a dispute over missing funds and allegedly altered receipts for maintenance purchases. Upon reporting back after his two-week suspension, he was directed between his supervisor and management on four occasions without being allocated work or given written communication, and there was no further correspondence. He claimed unfair termination and sought notice pay, pay for five days worked in May 2014, underpayments, six years of overtime and compensation. The defence asserted the claimant absconded after declining redeployment. The court held that written communication is the fodder of fair labour relations and is legally required under section 10 of the Employment Act, 2007, that suspension is an administrative measure to be handled within fair labour practices under section 41, and that an employer who leaves an employee at large rather than invoking section 44 invites claims of unfair termination. It found unprocedural termination contrary to section 45. Notice pay of Ksh.9,024, pay for five days worked of Ksh.1,735.50 and compensation of two months' gross wage (Ksh.24,000, discounted for the claimant's prior misconduct record) were awarded. Claims for underpayment and overtime failed, the claimant's pay having exceeded the applicable minimum wage and included an overtime allowance. Each party was ordered to bear its own costs. Judgment was delivered electronically on 4 June 2020 pursuant to COVID-19 court operation directives.

Key legal issues

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01

Whether the claimant's employment was unfairly terminated

Holding

The court found unprocedural termination; the respondent failed to apply sections 41, 43 and 44 of the Employment Act after the claimant reported back and was not allocated work.

Reasoning

Both parties agreed the claimant was suspended on 4 May 2014. The defence of redeployment and abscondment had no written evidence. After four consecutive reportings without work allocation, a reasonable employee would conclude his employment had been frustrated. The employer was legally bound to address and communicate with the claimant under sections 41, 43 and 44, and its failure rendered the termination unprocedural and unfair contrary to section 45.

p. 3
02

Entitlement to notice pay and compensation

Holding

Notice pay of Ksh.9,024 and compensation of two months' gross wage (Ksh.24,000) awarded, the latter discounted for the claimant's prior record of misconduct.

Reasoning

Under section 45(5) the court considers the employee's work record. The claimant admitted prior misconduct leading to his 2004 suspension and was suspended in May 2014 following misconduct allegations. Save for procedural lapses, these factors reduced compensation to two months' gross wage at Ksh.12,000.

p. 3
03

Claims for overtime and underpayment

Holding

Both claims failed; overtime was factored into wages as an allowance, and the claimant's gross pay exceeded the applicable minimum wage.

Reasoning

Payment statements showed a monthly Ksh.2,000 responsibility/overtime allowance. For 2012/2013 the basic wage of Ksh.7,200 exceeded the minimum of Ksh.6,999, and for 2013/2014 gross pay of Ksh.12,000 exceeded the required Ksh.10,377.60. Further payment would amount to unjust enrichment.

p. 4

Legal principles established

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  • Written communication between employer and employee touching terms and conditions of employment is a legal requirement under section 10(1) and (7) of the Employment Act, 2007.
  • Suspension is an administrative measure that must be handled within fair labour practices, including calling the employee to show cause where culpable.
  • An employer who declines to exercise its rights under section 44 against an absent employee and leaves the employee at large invites claims of unfair termination; failure to allocate work after reporting back is unprocedural termination.

Court orders

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  1. 1.Judgment entered for the claimant against the respondent that there was procedural unfairness in termination of employment
  2. 2.Compensation awarded at Ksh.24,000 (two months' gross wage at Ksh.12,000)
  3. 3.Notice pay of Ksh.9,024 awarded
  4. 4.Pay for 5 days worked in May 2014 awarded at Ksh.1,735.50
  5. 5.Each party to bear own costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 44, 45 and 90 invoked)

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, "Elly Ayieko Gwara v Evans Sunrise Mdical Center [2020] KEELRC 962 (KLR)", Case Analysis (2020). Cause No. 354 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/962/eng@2020-06-04

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