Stephen Oduor Ndege v Riley Service Limited [2020] KEELRC 1593 (KLR)
The bottom line
#A Kenyan court ruled that firing a sick security guard without a hearing was unfair and awarded him a full year's salary in compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal of the Claimant for absconding duty was substantively and procedurally fair
The dismissal was unfair, unjust and unprocedural; the Claimant was absent for a valid reason (sickness) and was not afforded a hearing
The Respondent dismissed the Claimant under section 44(4)(a) of the Employment Act for absence without permission. However, the Claimant was receiving treatment for recurrent chest ailments and the Respondent did not verify the hospital letter's authenticity nor call him for a disciplinary hearing. RW1 confirmed no hearing was held and no summons to show cause were produced. The Respondent also did not controvert evidence that the control room told him to stay home until well. The dismissal therefore lacked both valid reason and fair procedure under sections 41 and 45 of the Employment Act.
Whether the Claimant discharged his burden of proof under section 47(5) of the Employment Act
The Claimant discharged the burden; the Respondent failed to justify the grounds for termination
Applying section 47(5) as explained in Samsung Electronics East Africa Ltd v K M, the employee bears the burden of proving unfair termination while the employer must justify the grounds. The Claimant produced medical documentation and evidence of reporting to the control room, which the Respondent did not investigate or controvert. The employer's failure to follow up with the hospital and its admission that no disciplinary hearing was held meant it failed to justify the dismissal, rendering the termination unfair.
Whether the Claimant was entitled to compensation and notice pay
The Claimant was awarded maximum compensation of 12 months' salary and one month's pay in lieu of notice
Section 45(4) requires employers to act in accordance with justice and equity. The court considered the Claimant's long service from 1994 to 2014, the fact that he was dismissed for absence for a valid reason without observance of fair procedure under section 41, and that he went home empty-handed. These circumstances justified the maximum award of 12 months' gross salary of Kshs.132,093 plus one month's salary in lieu of notice as prayed in the Statement of Claim.
Legal principles established
#- The burden of proving unfair termination rests on the employee, while the burden of justifying the grounds for termination rests on the employer
- An employee who is unwell cannot be expected to report to the employer on a daily basis until he gets well
- An employer who dismisses an employee for absence on account of sickness, without verifying the medical evidence or affording a hearing, cannot claim a valid reason
Court orders
#- 1.One month's salary in lieu of notice of Kshs.11,007.75
- 2.12 months' compensation for unfair termination of Kshs.132,093 (total award Kshs.143,101)
- 3.The respondent shall pay the claimant's costs and interest from date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Oduor Ndege v Riley Service Limited [2020] KEELRC 1593 (KLR)", Case Analysis (2020). Cause No 416 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1593/eng@2020-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.