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ELRCDismissedNot stated in the judgment· [2022] KEELRC 1225 (KLR)

Shisumu v Agriculture, Fisheries and Food Authority (Cause 1 of 2017) [2022] KEELRC 1225 (KLR)

Employment and Labour Relations Court
28 April 2022
1,463 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 the dismissal of an employee absent for 110 days, ruling that a disciplinary committee's recommendation to transfer him did not bind the employer.

What this practically means

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Executive summary

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The claimant, formerly employed by the respondent as a Horticultural Assistant in the Technical Department, was summarily dismissed on November 18, 2015 for being absent from duty without permission for a total of 110 days. His appeal was dismissed on January 15, 2016. He filed a memorandum of claim dated November 21, 2016 seeking reinstatement, payment of damages/benefits, costs and interest, contending that the allegation was based on a fictitious attendance register, that he had received no prior warning, and that the disciplinary committee's recommendation that he be transferred amounted to a legitimate expectation that transfer was the final decision. The respondent maintained that the claimant failed to account for 110 days of absence, had been cautioned by his supervisor, did not sign the attendance register, produced no evidence of forgery on appeal, and that summary dismissal followed a proper hearing in line with section 44 of the Employment Act. The court framed two issues: whether the dismissal was lawful and fair, and whether the claimant was entitled to the reliefs sought. On a balance of probability the court found the respondent complied with procedural fairness under sections 41 and 45 of the Employment Act, as the reasons for dismissal were justified and a hearing was held on the same grounds. It further held that the disciplinary committee's recommendation of transfer was only persuasive and the employer had the final say. The authorities cited on remedies were found inapplicable. The claim dated November 21, 2016 was dismissed with each party to meet its own costs.

Key legal issues

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01

Whether the dismissal of the claimant from employment was lawful and fair

Holding

The dismissal was lawful and fair; the respondent complied with sections 41 and 45 of the Employment Act and the reasons for dismissal were justified

Reasoning

The claimant was issued a show cause letter alleging 110 days' absence, responded denying the allegation, and appeared before a disciplinary committee before dismissal. The claimant alleged the attendance register was forged but led no evidence of forgery. His appeal did not address the specific unaccounted days. On a balance of probability the absence from duty was established and the procedure was fair.

p. 4
02

Whether the claimant's legitimate expectation of transfer based on the disciplinary committee's recommendation defeated the dismissal

Holding

No - committee recommendations are only persuasive and the employer had the final say

Reasoning

The disciplinary committee recommended the claimant's transfer from HCD Bungoma to HCD Kimilili Depot, which the claimant took as the final disciplinary decision. The court held that the recommendations of a committee are only persuasive, and the Authority as employer was within its right to terminate the claimant's services for absence from work.

p. 4
03

Whether the claimant is entitled to the reliefs sought

Holding

The claimant is not entitled to any of the reliefs sought since the dismissal was lawful and fair

Reasoning

Having found the dismissal lawful and fair, the court held the claimant not entitled to reinstatement, damages or benefits. The authorities cited by the parties on remedies of reinstatement and compensation were inapplicable in light of that finding.

p. 4

Legal principles established

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  • Recommendations of a disciplinary committee are only persuasive and the employer has the final say on the employee's fate
  • Procedural fairness under sections 41 and 45 of the Employment Act is satisfied where reasons for dismissal are justified and a hearing is held on the same grounds

Court orders

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  1. 1.The claimant's claim dated November 21, 2016 is held to be without merit and is dismissed
  2. 2.Each party to meet its own costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, sections 41, 44 and 45 invoked)

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, "Shisumu v Agriculture, Fisheries and Food Authority (Cause 1 of 2017) [2022] KEELRC 1225 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1225/eng@2022-04-28

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