Wanjiru Munyao v New Wide Garments Kenya Epz Limited & another [2022] KEELRC 1028 (KLR)
The bottom line
#Kenyan employers cannot simply dismiss an employee for absconding; they must first try to contact the worker and give them a chance to explain.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was unfairly terminated or absconded duty
Even if the employee absconded, the employer's failure to contact her or afford a hearing under section 41 rendered the dismissal unfair and unlawful
The 2nd respondent dismissed the claimant on grounds of abscondment but produced no evidence that it attempted to reach her or establish the reason for her absence. Having established channels of communication over a considerable employment period, prudence required contact and a show cause. Section 41(2) obliged the employer to hear and consider representations even in abscondment cases. Failure faulted the disciplinary process.
Whether the claimant proved she was dismissed
The respondents' own documentary evidence (letter of summary dismissal) confirmed the dismissal, rendering the argument idle
The respondents argued under section 47(5) that the claimant failed to prove dismissal, yet they themselves attached and produced a letter of summary dismissal dated 17th June 2016. The court found no contest on the fact of dismissal and dismissed the objection as idle.
Entitlement to notice pay
Claimant entitled to one month's salary in lieu of notice under section 35(1)(c) notwithstanding a 14-day contractual notice clause
Summary dismissal without notice is prohibited under section 44(2), and section 35(1)(c) imposes a mandatory one month notice for monthly-salaried employees. The contractual 14-day notice was superseded by the statute. Award of Kshs 19,319.44 made.
Liability of the 1st respondent
The claim against the 1st respondent was dismissed as the claimant was employed by the 2nd respondent at dismissal
Although the claimant first worked for the 1st respondent, her services had been transferred to the 2nd respondent, in whose employment she stood at the point of termination. The 1st respondent was therefore not liable, though service was treated as continuous for compensation purposes.
Legal principles established
#- An employer alleging abscondment must make reasonable attempts to contact the employee and issue a show cause letter before summary dismissal
- Statutory notice under section 35(1)(c) supersedes a shorter contractual notice period
- Service is deemed continuous across closely connected respondent companies following a transfer of service
Court orders
#- 1.A declaration that the claimant's termination was unfair and unlawful
- 2.Award of compensatory damages of Kshs 96,579.20 equivalent to 5 months gross salary against the 2nd respondent
- 3.One month's salary in lieu of notice of Kshs 19,319.44
- 4.Total award of Kshs 115,916.64
- 5.Costs of the suit to the claimant
- 6.Interest on the total award at court rates from the date of judgment till payment in full
- 7.Dismissal of the claim against the 1st respondent in its entirety
- 8.Certificate of service to issue to the claimant pursuant to section 51(1) of the Employment Act
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (unfair termination claim under sections 41, 43 and 45)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanjiru Munyao v New Wide Garments Kenya Epz Limited & another [2022] KEELRC 1028 (KLR)", Case Analysis (2022). Cause No 1049 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1028/eng@2022-01-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.