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ELRCDismissedNot stated in the judgment as provided· [2020] KEELRC 1157 (KLR)

GMK v Kenyatta National Hospital [2020] KEELRC 1157 (KLR)

Employment and Labour Relations Court
12 May 2020
MOMaureen Onyango
3,183 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court upheld Kenyatta National Hospital's dismissal of an employee who abandoned his post without notifying his employer of illness.

What this practically means

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Executive summary

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The claimant, a Medical Social Worker II employed by the respondent hospital, was redeployed in May 2012 from Wards 7A and 7B to VCT. He did not report to the new station, alleging he suffered severe mental depression for which he was treated by Dr. Pius Kigamwa. The respondent alleged desertion from 3rd May 2012, sent a show cause letter dated 20th June 2012 to the claimant's last known postal address in Meru, and dismissed him by letter dated 26th July 2012 on account of desertion. The claimant sought reinstatement, salary arrears, damages, notice pay, leave pay, salary for July 2012, medical expenses and maximum 12 months' compensation. The court framed two issues: whether the claimant was unlawfully terminated or deserted duty, and whether he was entitled to the remedies sought. Applying the test in Felistas Acheha Ikatwa and Section 44(4)(a) of the Employment Act, the court found the show cause letter sufficient notification of intended dismissal, held that a medical report produced months after termination was no excuse for absence, and that an employee who absconds and ignores a show cause letter cannot complain of not being heard. The dismissal was found fair both procedurally and substantively and upheld. The claim was dismissed in its entirety with no orders as to costs.

Key legal issues

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01

Whether the claimant was unlawfully terminated or deserted duty

Holding

The respondent had a valid reason and followed a fair procedure; the summary dismissal on account of desertion was upheld as fair both procedurally and substantively

Reasoning

The claimant did not report to his new station after transfer and his whereabouts were unknown. He never notified the respondent of his illness, and Dr. Kigamwa's medical report came months after termination. The show cause letter sent to his last known address warned of dismissal, and the dismissal letter explained the desertion. Absence without leave or lawful cause amounts to gross misconduct under Section 44(4)(a) of the Employment Act. A show cause letter is sufficient notification of intention to dismiss where the employee fails to respond.

p. 7
02

Whether the claimant was entitled to the remedies sought

Holding

No remedies were awarded as the dismissal was found fair and the claim dismissed with no orders as to costs

Reasoning

Since the court found valid reason for the disciplinary action and upheld the summary dismissal as procedurally and substantively fair, none of the reliefs sought - reinstatement, salary arrears, damages, notice pay, leave pay, salary for July 2012, medical expenses or maximum compensation - could issue. The claim was dismissed in its entirety with no orders for costs.

p. 7

Legal principles established

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  • An employer alleging desertion must demonstrate efforts made to get the employee to resume duty, including issuing notice that termination on the ground of desertion is being considered
  • An employee who absconds duty and does not respond to a show cause letter cannot complain of not being heard
  • Burden of proving unfair termination rests on the employee while the burden of justifying the grounds for termination rests on the employer

Court orders

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  1. 1.The Claim is dismissed
  2. 2.There shall be no orders for costs

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 44(4)(a)
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 30(2)
  • Employment Act, 2007Section 39(2)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Official Secrets ActDeclaration form (referenced in dismissal letter)

Cases cited (8)

  • Godfrey Anjere v Unique Suppliers Limited
    (2015) eKLR
  • Aggrey Lukorito Wasike v Kenya Power & Lighting Company Limited
    (2016) eKLR
  • Jadiah Mwarania v Kenya Reinsurance Corporation Limited
    (2018) eKLR
  • Mary Chemweno v Kenya Pipeline Company Limited
    (2014) eKLR
  • Kenny Kinako v Rigler Kenya
    (2016) eKLR
  • Banking, Insurance & Finance Union (Kenya) v Barclays Bank of Kenya Limited
    (2014) eKLR
  • Seabolo v Belgravia Hotel
    (1997) 6 BLLR 829 (CCMA)
  • Felistas Acheha Ikatwa v Charles Peter Otieno
    (2018) eKLR
Jurisdiction invoked
First-instance employment and labour relations claim under the Employment and Labour Relations Court's jurisdiction (Employment Act, 2007 provisions relied upon; no specific constitutional provision invoked as jurisdictional basis)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "GMK v Kenyatta National Hospital [2020] KEELRC 1157 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1157/eng@2020-05-12

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