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ELRCPartially AllowedCause No 2500 of 2017· [2022] KEELRC 460 (KLR)

Andrew Cornel Athembo v Carlcare Services Limited [2022] KEELRC 460 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
18 March 2022
SRStella Rutto
3,192 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that even when an employee clearly absconds, firing them without a fair hearing makes the dismissal unlawful and costly.

What this practically means

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Executive summary

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The claimant, employed from April 2016 and formalized on 1 January 2017 as a Financial Assistant, alleged that in March 2017 his supervisor verbally terminated his services and he was thereafter denied access to the respondent's premises. He sought declarations that his termination was unlawful and unfair, compensatory damages, salary for the remainder of his contract, salary arrears for compassionate and sick leave, and general and exemplary damages. The respondent denied the claim, asserting the claimant absconded duty, reported late, failed to clock in and out of the biometric system, and failed to hand over work reports, and that he was paid his terminal dues and issued a certificate of service. The court framed three issues: justification for termination, compliance with fair hearing requirements, and entitlement to reliefs. On substance, the court found the biometric register showed the claimant absent without permission, that he neither applied for compassionate nor sick leave as his contract required nor produced any medical evidence, and therefore the respondent had justifiable cause to terminate for abscondment under section 44(4)(a) of the Employment Act. On procedure, following the Court of Appeal in Postal Corporation of Kenya v Andrew K. Tanui, the court held the section 41 fair hearing requirements are mandatory minimum standards; the respondent never issued a show cause notification, so the termination was procedurally unfair. The court awarded five months' gross salary as compensatory damages (Kshs 175,000/=) with interest at court rates from the date of judgment, declined notice pay, leave arrears and compassionate/sick leave claims, and ordered the respondent to bear the costs.

Key legal issues

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01

Whether there was justifiable reason for termination

Holding

Yes - the claimant absconded duty without applying for compassionate or sick leave as his contract required, justifying termination on account of abscondment under section 44(4)(a).

Reasoning

The biometrics attendance register showed the claimant absent from 27 February 2017 to 15 March 2017. He did not prove he was at work on those days, did not specify or evidence his claimed compassionate or sick leave, produced no medical certificate, and did not apply for leave as required by clauses 10, 11.1 and 11.4 of his contract. His unexplained absence gave the respondent cause to treat the absence as desertion of duty.

p. 3
02

Whether the respondent complied with fair hearing requirements

Holding

No - the termination was procedurally unfair for want of compliance with section 41.

Reasoning

Although justified substantively, the respondent never issued a show cause letter or notified the claimant of the allegations, and never heard him. The court adopted the Postal Corporation v Tanui four-element test under section 41. It rejected the excuse that the claimant could not be traced, since established channels of communication existed within the employment relationship. Procedural fairness is mandatory regardless of the employee's transgressions.

p. 4
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Reliefs

Holding

Compensatory damages of five months' gross salary (Kshs 175,000/=) awarded; notice pay already paid; other heads declined.

Reasoning

Because termination was substantively valid but procedurally flawed, the court awarded five months' gross salary as compensatory damages under section 49. Notice pay was already included in terminal dues, and claims for compassionate leave, sick leave and untaken leave were denied for lack of evidence and particularization.

p. 4

Legal principles established

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  • The employer bears the burden of proving the reasons for termination; failure to do so renders the termination unfair (sections 43(1) and 45(2) Employment Act).
  • The fair hearing requirements of section 41 of the Employment Act are mandatory minimum standards that an employer cannot overlook, even where the employee has absconded.
  • A termination may be substantively justified yet procedurally unfair where the statutory hearing requirements are not met.

Court orders

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  1. 1.Judgment entered in favour of the claimant against the respondent for Kshs 175,000/= being compensatory damages for unlawful termination
  2. 2.The award to bear interest at court rates from the date of judgment until payment in full
  3. 3.The respondent to bear the costs of the claim

Authorities

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Legislation

  • Employment Actsection 45
  • Employment Actsection 43(1)
  • Employment Actsection 45(2)(a) & (b)
  • Employment Actsection 44(4)(a)
  • Employment Actsections 45(2)(c) and 41
  • Employment Actsection 42(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B

Cases cited (6)

  • Anthony Mkala vs Malindi Water & Sewerage Co. Ltd
    Industrial Cause No. 66 of 2012
  • Mary Chemweno vs Kenya Pipeline Limited
  • Joseph Sitati Nato vs Kenya Ports Authority
    (2010) EKLR
  • JSC vs Gladys Boss Shollei & another
    (2014) eKLR
  • Kenfreight (EA) Ltd vs Benson K. Nguti
    (2016) eKLR
  • Postal Corporation of Kenya vs Andrew K. Tanui
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (employment relationship between the parties)

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, "Andrew Cornel Athembo v Carlcare Services Limited [2022] KEELRC 460 (KLR)", Case Analysis (2022). Cause No 2500 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/460/eng@2022-03-18

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