ONS v Kenya Airways Limited [2020] KEELRC 1226 (KLR)
The bottom line
#Kenya's Employment Court ruled firing a hospitalised or rehabilitating employee for absenteeism is unfair—employers must hold a hearing even if the worker can't attend.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant proved injury at the workplace
The claimant failed to prove on a balance of probabilities that he sustained an injury at work
The claimant's pleadings contradicted his testimony: he pleaded he was rushed immediately to Kenyatta National Hospital yet testified he reported to the respondent's clinic the following day. He produced no medical report or treatment notes linking the amputation to a workplace injury, while RW1 testified there was no clinic record of the injury and that the amputation resulted from a clot caused by pre-existing diabetes and HIV.
Whether the termination was for a valid reason
The termination lacked a valid reason because the absence was for lawful cause known to the respondent
The termination letter showed the respondent knew from the Wonder Peace Rehabilitation Centre's letter dated 18th June 2011 that the claimant was admitted for 90 days for alcoholism before the panel hearing date. Absenteeism justifies summary dismissal only if without leave or lawful cause; the respondent's knowledge of the admission made the absence lawful in character. The situation required assistance, not punishment.
Whether a fair procedure was followed
The procedure was not complied with as no hearing took place
RW2 admitted the panel hearing never sat. Although the claimant could not attend because he was in rehabilitation, the respondent ought either to have awaited his recovery or conducted the hearing in his absence and made a determination. The claimant had also not responded to earlier show cause letters, but the respondent's knowledge of his admission at the rehab centre meant it could not simply dispense with the hearing.
Entitlement to 12 months' compensation
Only 5 months' compensation awarded given the imminent expiry of the contract
Under section 49(4)(e) and (f) of the Employment Act the employee's length of service and reasonable expectation of continued employment are relevant. The contract would have expired 5 months after termination, so compensation was limited to 5 months' salary at Kshs.59,268 per month, plus one month's pay in lieu of notice.
Compensation for deducted tax
The claim for tax compensation failed
Section 12(3) of the Persons with Disabilities Act and section 35(1) allow tax exemption for persons with disabilities, but paragraph 3 of the 2010 Order requires registration with the Council. The claimant was not registered during his employment and never provided a Tax Exemption Certificate; furthermore, tax remitted to KRA can only be recovered from the Authority.
Legal principles established
#- Absenteeism under section 44(4)(a) of the Employment Act is a ground for summary dismissal only where the absence is without leave or without other lawful cause; an employer aware of the employee's illness cannot rely on absenteeism
- Where an employer knows an employee is unwell and hospitalised, it must await the employee's recovery or conduct the disciplinary hearing in absentia; failure to hold any hearing renders the termination procedurally unfair
- A sick employee must notify the employer of the illness; failure to do so is a good defence for the employer, especially where the employee contributes to the illness
- A person with disability must be registered with the Council before applying for income tax exemption, and tax already remitted to KRA is recoverable from the Authority and not from the employer
Court orders
#- 1.Judgment entered for the claimant in the sum of Kshs.355,608 comprising 5 months' salary as compensation (Kshs.296,340) and pay in lieu of notice (Kshs.59,268)
- 2.Interest at court rates from the date of judgment
- 3.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (original employment dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ONS v Kenya Airways Limited [2020] KEELRC 1226 (KLR)", Case Analysis (2020). Employment and Labour Relations Cause (Memorandum of Claim filed 14th May 2014, amended 17th November 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1226/eng@2020-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.