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ELRCPartially AllowedCause No 618 of 2017· [2021] KEELRC 575 (KLR)

Mohammed Ali Iddow v Highland Resources Limited [2021] KEELRC 575 (KLR)

Employment and Labour Relations Court of Kenya
5 November 2021
2,925 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Even with a valid reason to fire an employee, a Kenyan employer must still follow fair procedure or pay compensation.

What this practically means

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Executive summary

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The claimant, a security guard employed by the respondent at Kshs 15,000 per month, sued for unlawful termination following a road traffic accident on 5th September 2016. He claimed he was terminated while recuperating and sought salary from September 2016 to March 2017, three months' notice pay, unpaid leave, unfair termination remedies, severance pay, NSSF contributions and a recommendation letter. The respondent denied dismissing him, asserting he was injured outside employment after leaving work without permission, that it paid his salary to December 2016 and settled his hospital bills, and that he absconded after discharge. Each party called one witness. The court framed three issues: justifiable cause, procedural fairness, and reliefs. It held under sections 43(1) and 45(2) of the Employment Act that the respondent had justifiable cause for termination, because the claimant never applied for sick leave or notified the respondent of his continued recuperation, and sick leave cannot be indefinite. However, under sections 41 and 45(2)(c), the respondent failed to prove it notified the claimant of the disciplinary reasons or gave him a hearing, so the termination was procedurally unfair. On reliefs, the court denied salary arrears, unpaid leave and severance for lack of proof or applicability, awarded one month's salary in lieu of notice and two months' gross salary as compensation (total Kshs 45,000), ordered the NSSF contribution deducted from the award, granted a certificate of service, and ordered the respondent to pay the costs of the suit.

Key legal issues

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01

Whether the respondent had justifiable cause to terminate the claimant

Holding

The respondent had justifiable cause, as the claimant failed to notify it of his need to continue recuperating or apply for sick leave, amounting to desertion of duty.

Reasoning

Section 43(1) requires the employer to prove reasons for termination, and section 45(2) requires those reasons to be valid and fair. Section 30(2) places the burden on the employee to notify the employer of absence and its reasons to qualify for sick leave. The claimant never applied for sick leave or forwarded his medical report, so the respondent had grounds to treat his absence as desertion.

p. 3
02

Whether the claimant was accorded fair hearing prior to termination

Holding

Although the respondent had justifiable cause, it failed to accord the claimant procedural fairness under sections 41 and 45(2)(c).

Reasoning

Procedural fairness requires the employer to notify the employee of the reasons for contemplated termination in a language he understands, in the presence of another employee or union representative, and to give him an opportunity to respond. The respondent produced no evidence that it notified the claimant of the disciplinary reasons or used established channels of communication to reach him.

p. 3
03

What reliefs is the claimant entitled to

Holding

The claimant was awarded one month's salary in lieu of notice and compensation equivalent to two months' gross salary, with other prayers denied.

Reasoning

Given the claimant's own imprudence in not notifying the employer and the respondent's valid reason for termination but failure to follow fair procedure, the court apportioned relief: one month's notice pay under section 35(1)(c) and a modest two-month compensation under section 49, refusing unpaid salary, leave pay and severance for lack of proof or applicability.

p. 4

Legal principles established

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  • An employee claiming sick leave must notify the employer of the absence and its reasons as soon as reasonably practicable; sick leave cannot be indefinite and is subject to periodical medical reviews and a medical report.
  • An employer with justifiable cause to terminate must nonetheless comply with the procedural fairness requirements of sections 41 and 45(2)(c) of the Employment Act.

Court orders

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  1. 1.Judgment entered in favour of the claimant against the respondent in the sum of Kshs 45,000.00 comprising one month's salary in lieu of notice (Kshs 15,000.00) and compensation equivalent to two months' gross salary (Kshs 30,000.00)
  2. 2.NSSF contribution to be deducted from the claimant's final award and remitted as appropriate
  3. 3.Claimant entitled to a certificate of service under section 51(1) of the Employment Act
  4. 4.Respondent to bear the costs of the suit

Authorities

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Legislation

  • Employment Actsection 43(1)
  • Employment Actsection 45(2)
  • Employment Actsection 45(2)(c)
  • Employment Actsection 41
  • Employment Actsection 30(1)
  • Employment Actsection 30(2)
  • Employment Actsection 40
  • Employment Actsection 44(2)
  • Employment Actsection 35(1)(c)
  • Employment Actsection 51(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (2)

  • Kennedy Nyangucha Omanga vs Bob Morgan Security Services Limited
    (2013) eKLR
  • GMK vs Kenyatta National Hospital
    (2020) eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment and Labour Relations Court (Article 162(2) of the Constitution, not expressly quoted in the judgment)

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, "Mohammed Ali Iddow v Highland Resources Limited [2021] KEELRC 575 (KLR)", Case Analysis (2021). Cause No 618 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/575/eng@2021-11-05

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