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ELRCDismissedCause No. 61 of 2018· [2020] KEELRC 1411 (KLR)

Anthony Korir v Imarisha Sacco Society Limited [2020] KEELRC 1411 (KLR)

Employment and Labour Relations Court of Kenya
2 March 2020
6,444 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 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

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Executive summary

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The claimant, formerly Senior Internal Auditor and later Risk and Compliance Manager of Imarisha SACCO Society Limited, sued for a declaration that his summary dismissal of 31st May, 2018 was unlawful, unprocedural and unfair, seeking reinstatement or, in the alternative, salary for the remainder of his contract, twelve months' compensation, notice pay, gratuity, interest, a certificate of service and costs. The respondent defended the dismissal on grounds of absenteeism, lateness, failure to attend the Annual Delegates Meeting despite taking allowances, insubordination and an unauthorised salary increment. The court framed three issues: whether termination was unlawful and unfair; whether reinstatement should issue; and whether alternative remedies were due. Examining the biometric attendance records, the select committee's report and witness testimony, the court found habitual lateness, absences and early clock-outs, an unjustified refusal to honour a recall from annual leave, unrecorded attendance at the Annual Delegates Meeting while collecting allowances, and insubordination. The claimant's explanations were found wanting, and although the employer was equally at fault for the erroneous salary payment, the court found valid and genuine grounds justifying the summary dismissal under section 44(4) of the Employment Act, 2007. Reinstatement under section 49(4) was unavailable because termination was not unfair, and the alternative remedies likewise fell away. The suit was dismissed with each party bearing own costs.

Key legal issues

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01

Whether the summary dismissal was justified on the grounds of absenteeism, lateness and failure to attend the Annual Delegates Meeting

Holding

The dismissal was justified; biometric records and attendance evidence established gross misconduct under section 44(4)(a)

Reasoning

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.

p. 9
02

Whether refusal to respond to a recall from annual leave constituted insubordination justifying dismissal

Holding

Yes; recall from leave is permissible and refusal to comply is gross misconduct under section 44(4)(e)

Reasoning

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.

p. 8
03

Whether the claimant was insubordinate

Holding

Yes; his conduct at the disciplinary hearing and failure to abide lawful instructions established insubordination

Reasoning

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.

p. 9
04

Whether the unauthorised salary increment was a valid ground for dismissal

Holding

The claimant failed to explain how his salary was increased without approval, though the employer may also deduct wages paid in error

Reasoning

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.

p. 9
05

Whether reinstatement and alternative remedies were available

Holding

No; termination was justified, so reinstatement, compensation, notice pay and gratuity were not due

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.The suit is found without merit and is dismissed
  2. 2.Each party shall bear own costs

Authorities

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Legislation

  • Employment Act, 2007section 35
  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 44(4)(a)-(e)
  • Employment Act, 2007section 45
  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 49(4)
  • Employment Act, 2007section 19(c) and (e)
  • Employment and Labour Relations Court Act, 2011section 12(4)
  • Co-operative Societies Act
  • Management Collective Bargaining Agreement 2017-2020

Cases cited (9)

  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Nicholas Muasya Kyula v Farmchem Limited
    [2012] eKLR
  • Donald Odeke v Fidelity Security Limited
    [2012] eKLR
  • Frederick Kariuki Kamau v Bank of India
    [2015] eKLR
  • Ivetta Mkala v Nation Media Group Cause No.237 of 2012
  • Moses Ochieng v Unilever Kenya Limited
    [2018] eKLR
  • George Onyango Akuti v Security Services Kenya Limited
    (2013) eKLR
  • Standard Group Limited v Jenny Luesby
    [2018] eKLR
  • TMT Services & Supplies (PTY) Ltd v Samwu Obo Felicia Lungile
    Case no: JA32/2017
Jurisdiction invoked
Employment and Labour Relations Court Act, 2011 (s.12) - first-instance employment dispute under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "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.