Anthony Korir v Imarisha Sacco Society Limited [2020] KEELRC 1411 (KLR)
The bottom line
#Kenya's Employment Court upheld a SACCO auditor's summary dismissal, ruling that repeated absenteeism, lateness and refusing a lawful recall from leave justified immediate termination.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was justified on the grounds of absenteeism, lateness and failure to attend the Annual Delegates Meeting
The dismissal was justified; biometric records and attendance evidence established gross misconduct under section 44(4)(a)
The court examined the biometric records reproduced at the disciplinary hearing, showing habitual lateness, absences and early clock-outs. The claimant's explanations of approved leave and rest days did not regularise the absences, and absence required prior permission. His unrecorded attendance at the Annual Delegates Meeting, while collecting the allowance, was found to be absence without approval amounting to gross misconduct under section 44(4)(a) of the Employment Act, 2007.
Whether refusal to respond to a recall from annual leave constituted insubordination justifying dismissal
Yes; recall from leave is permissible and refusal to comply is gross misconduct under section 44(4)(e)
The court held that annual leave does not shield an employee from a lawful recall to work. The claimant was recalled on 8/9 April 2018 but did not report and sought permission only after the fact without obtaining approval. Defiance of a lawful and proper command within the scope of duty constitutes gross misconduct under section 44(4)(e) of the Employment Act, 2007, and was relied on as a valid ground for dismissal.
Whether the claimant was insubordinate
Yes; his conduct at the disciplinary hearing and failure to abide lawful instructions established insubordination
Relying on Standard Group Limited v Jenny Luesby and the South African authority TMT Services & Supplies v Samwu, the court found the claimant disrespectful of the CEO at the disciplinary hearing and defiant of lawful instructions. Defiance of authority can be proven by a single act, without high drama; the employer's prerogative to command subordinates is the interest protected by the class of misconduct labelled insubordination.
Whether the unauthorised salary increment was a valid ground for dismissal
The claimant failed to explain how his salary was increased without approval, though the employer may also deduct wages paid in error
The claimant asserted he was not in charge of payroll but did not address how his salary was increased without the employer's approval. The court noted under section 19 of the Employment Act the employer may deduct wages paid in error or for days absent. The claimant's failure to explain the increments left the ground un rebutted, supporting the justification for dismissal.
Whether reinstatement and alternative remedies were available
No; termination was justified, so reinstatement, compensation, notice pay and gratuity were not due
Reinstatement under section 49(4) of the Employment Act presupposes unfair termination. Since the court found valid and genuine grounds for the summary dismissal, the declaratory and reinstatement remedies failed. The alternative remedies of salary for the contract term, 12 months' compensation, notice pay, gratuity and interest likewise fell away because the contract was terminated for good cause rather than without notice.
Legal principles established
#- The burden of justifying the grounds for summary dismissal lies on the employer, who must prove gross misconduct and accord the employee due process under sections 41 and 44 of the Employment Act
- An employee recalled from annual leave must obey a lawful recall to work; refusal amounts to gross misconduct under section 44(4)(e)
- Chronic lateness, absence without permission and early clocking out cumulatively amount to abandonment of work and gross misconduct
- Defiance of an employer's authority can be established by a single act of insubordination
Court orders
#- 1.The suit is found without merit and is dismissed
- 2.Each party shall bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court Act, 2011 (s.12) - first-instance employment dispute under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mayabilo v Goodlife Pharmacy Limited (Cause 580 of 2017) [2022] KEELRC 4115 (KLR)[2022] KEELRC 4115 (KLR)30 Jun 2022
- Mayabilo v Goodlife Pharmacy Limited (Cause 580 of 2017) [2022] KEELRC 4115 (KLR)[2022] KEELRC 4115 (KLR)30 Jun 2022applied
- Kenya Plantation and Agricultural Workers Union v Migotiyo Plantations Limited [2021] KEELRC 139 (KLR)[2021] KEELRC 139 (KLR)15 Dec 2021
- Kenya Plantation & Agricultural Workers Union v Migotiyo Plantations Limited [2021] KEELRC 168 (KLR)[2021] KEELRC 168 (KLR)15 Dec 2021
Cite this brief
#Cite this brief
Caselaw, "Anthony Korir v Imarisha Sacco Society Limited [2020] KEELRC 1411 (KLR)", Case Analysis (2020). Cause No. 61 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1411/eng@2020-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.