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ELRCDismissedCause No. 269 of 2018· [2020] KEELRC 1561 (KLR)

Jeremiah Osachi Kolwa v Bhogals Autoworld Limited [2020] KEELRC 1561 (KLR)

Employment and Labour Relations Court of Kenya
13 February 2020
MMM. Mbaru
1,727 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court upheld an employee's summary dismissal for unauthorised absence because the employer gave him a chance to explain himself before dismissing him.

What this practically means

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Executive summary

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The claimant, employed as an administrative clerk from 1 November 2010, was summarily dismissed by letter dated 14 July 2017 for absconding duty. He claimed he had obtained verbal approval from the managing director to travel home to attend to his ailing mother, with the time to be deducted from his annual leave, and that no hearing was accorded him. He sought notice pay of Ksh.20,890, terminal benefits for 6 years of Ksh.225,612, costs and interest. The defence, through the human resource manager Augustus Mutinda, was that the claimant left work on 3 July 2017 without permission, remained absent for 12 days, and when called said he would explain on return; on return he alleged his father had died but produced no evidence. Terminal dues were said to have been paid per the CBA dated 18 February 2016. The court reviewed section 44 of the Employment Act permitting summary dismissal for absence without good cause, subject to the hearing safeguards of section 41(2), citing authorities on procedural fairness. It found the claimant knew written approval was required, was given an opportunity to explain his absence on return, and his explanations lacked truth. Since wages were paid up to 14 July 2017 and dismissal followed the failed explanations, the dismissal was justified. The terminal benefits claim had no foundation, the claimant having denounced the CBA. The entire claim was dismissed with costs to the respondent.

Key legal issues

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01

Procedural fairness under sections 41 and 44 of the Employment Act

Holding

The claimant was given an opportunity to explain his absence upon return; his explanations were found wanting, so the summary dismissal satisfied the statutory safeguards

Reasoning

The court found that after the 12-day absence the claimant was allowed to explain himself to the human resource manager. He could not substantiate the claim that his mother was ailing or that his father had died, and he knew written approval was required for leave. The dismissal came only on 14 July 2017 after the explanations failed, wages having been paid up to that date. Since the safeguard of hearing was met and the absence lacked good cause, the dismissal was neither substantively nor procedurally unfair.

p. 2
02

Entitlement to terminal benefits under the CBA

Holding

The claim for terminal benefits for 6 years failed for want of foundation, the claimant having disowned the CBA

Reasoning

The respondent relied on a CBA dated 18 February 2016 with the union as the basis for the payment made on termination. The claimant argued the CBA did not bind him because no union dues were deducted. The court found the justification for a claim of terminal benefits for 6 years was never set out and had no foundation, so the claim failed together with the whole suit.

p. 3

Legal principles established

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  • An employer may summarily dismiss for absence without good cause or permission, but must still comply with the notice and hearing requirements of sections 41(2) and 44 of the Employment Act

Court orders

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  1. 1.The claim is dismissed in its entirety
  2. 2.Costs to the respondent

Authorities

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Legislation

  • Employment Act, 2007section 44
  • Employment Act, 2007section 41(2)
  • Employment Act, 2007section 45

Cases cited (3)

  • National Bank of Kenya versus Samuel Nguru Mutonya
    Civil Appeal No.118 of 2017
  • Standard Group Limited versus Jenny Luesby
    [2018] eKLR
  • Moi Teaching and Referral Hospital versus James Kipkonga Kendagor
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

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, "Jeremiah Osachi Kolwa v Bhogals Autoworld Limited [2020] KEELRC 1561 (KLR)", Case Analysis (2020). Cause No. 269 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1561/eng@2020-02-13

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