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ELRCPartially AllowedNot stated in the judgment as provided· [2020] KEELRC 1234 (KLR)

Alfred Kinyua Njiru v Abdi Farah Osman [2020] KEELRC 1234 (KLR)

Employment and Labour Relations Court
24 April 2020
NMNzioki wa Makau
1,708 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer who fires a worker for desertion without a written dismissal letter must pay compensation, the ELRC has ruled.

What this practically means

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Executive summary

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The Claimant, a former farm hand employed from 1st October 2010 at Kshs. 14,000/- per month, sued the Respondent alleging that his employment was orally terminated on 6th January 2018 by the Respondent's daughter while he was recovering from workplace injuries, without a show-cause notice or hearing. He sought maximum compensation of 12 months' salary, December 2017 salary arrears, one month's pay in lieu of notice, unpaid leave, public holidays and costs. The Respondent denied the injuries arose at work, contending the Claimant deserted work repeatedly, subleased part of the farm, misused farm tools, and that the employment lawfully ended under Section 44(3) of the Employment Act on account of desertion. The Respondent cited two South African authorities on desertion but attached none of them, an approach the court deprecated. The court held that while desertion can amount to gross misconduct justifying summary dismissal under Section 44(4)(a), an employer must evidence invocation of the summary dismissal option, ordinarily by letter; the Respondent produced no such document, and the date of dismissal could not be established. The court accordingly found for the Claimant but awarded only part of the relief sought: one month's salary in lieu of notice (Kshs. 14,000/-), two months' salary as compensation (Kshs. 28,000/-), and costs capped at Kshs. 30,000/-. Execution was automatically stayed for 14 days pursuant to the COVID-19 Practice Directions. The judgment was delivered at Nyeri on 24th April 2020 by Nzioki wa Makau, J.

Key legal issues

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01

Whether the summary dismissal for alleged desertion was justified under Section 44 of the Employment Act

Holding

The dismissal was not justified because the Respondent produced no documentary record of the summary dismissal despite the Claimant being summarily dismissed for absence and failure to report to work.

Reasoning

While desertion without leave or lawful cause can amount to gross misconduct justifying summary dismissal under Section 44(4)(a), the employer must evidentially invoke the summary dismissal option. No document was produced showing when or how the Claimant was dismissed, so the court could not find the dismissal was for lawful cause, and the Claimant succeeded on the claim.

p. 2
02

The meaning and proof of desertion

Holding

Desertion requires unauthorised absence with intent to remain away permanently, determined case by case from the circumstances and period of absence.

Reasoning

The court articulated the test for desertion, adopting the principle relied on by the Respondent's South African authorities. The intention not to return is inferred from the circumstances of the absence and its duration. However, even if desertion were established, the employer still had to evidence invocation of summary dismissal for Section 44(4) safeguards to apply.

p. 2
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Reliefs payable on the unfair summary dismissal

Holding

The Claimant was awarded one month's salary in lieu of notice and two months' salary as compensation, with costs capped.

Reasoning

Having found for the Claimant, the court exercised discretion under the Employment Act to award notice pay and modest compensation of two months' salary rather than the 12 months' maximum compensation sought, and capped costs at Kshs. 30,000/-.

p. 2

Legal principles established

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  • Desertion consists of absence from work without authorisation, with intent to remain away permanently, inferred from the circumstances and period of absence.
  • An employer invoking summary dismissal under Section 44 must record or evidence the invocation, ordinarily through a letter, to benefit from Section 44(4).

Court orders

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  1. 1.One month's salary in lieu of notice – Kshs. 14,000/-
  2. 2.Two months' salary as compensation – Kshs. 28,000/-
  3. 3.Costs capped at Kshs. 30,000/-
  4. 4.Automatic stay of execution of the judgment for 14 days in line with the COVID-19 Practice Directions

Authorities

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Legislation

  • Employment Act, 2007Section 41(2)
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 44(3)
  • Employment Act, 2007Section 44(4)
  • Employment Act, 2007Section 49(1)(c)
  • Employment Act, 2007Section 49(4)(e)
  • Civil Procedure RulesOrder 21 Rule 1 and 3

Cases cited (2)

  • SABC v CCMA and Others
    (2002) 8 BLLR 693 (LAC)
  • SACWU v Dyasi
    2001 7D LLR 731 (LAL)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Court not shown citing a specific provision in the excerpt)

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, "Alfred Kinyua Njiru v Abdi Farah Osman [2020] KEELRC 1234 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1234/eng@2020-04-24

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