Mwema v Brand Kenya Board (Cause 1441 of 2014) [2022] KEELRC 1469 (KLR)
The bottom line
#The Employment Court dismissed a receptionist's unfair termination and damages claims against Brand Kenya Board, finding her sacking was both justified and fairly done.
What this practically means
#Executive summary
#Key legal issues
#Whether the reason for termination was valid and fair
The Respondent proved valid and fair reasons - the Claimant absented herself without permission for six days and failed to submit sick sheets within the timelines in the HR Manual
The letter of termination cited gross misconduct, including absence from 22nd to 28th September 2015 and failure to remit sick leave certificates within stipulated timelines under Clause 8.1 of the HR Manual. The Claimant did not dispute the failure to remit sick sheets timely, and there was no evidence she was admitted during the six-day absence. Call logs also showed long personal calls undermining her medical causation claim. The court accordingly found the substantive reasons proved.
Whether the procedure under section 41 of the Employment Act was followed
The Claimant was accorded a fair hearing before the Ad hoc Disciplinary Committee
The Claimant appeared before the Ad hoc Disciplinary Committee but did not deny attending; there was no evidence of protest on the hearing date or a request for adjournment despite claiming she was on sick leave. The disciplinary committee report confirmed notices were issued and the hearing held as required by section 41. The court found the mandatory hearing requirements satisfied.
Whether the Claimant was entitled to the reliefs sought including WIBA compensation, overtime and damages for discrimination
No relief was due as the termination was valid both substantively and procedurally
Having found the termination lawful, all consequential reliefs - declarations, redeployment, constitutional damages, overtime, WIBA compensation and 12 months' salary - fell away. The overtime claim was also unsupported by evidence, the Claimant admitting no proof existed, and her medical causation claim was undermined by her own admission of long personal calls at work.
Legal principles established
#- A termination is fair only where the employer proves valid and fair reasons and follows a fair procedure
- An employee who attends a disciplinary hearing without protest or request for adjournment is accorded a fair hearing under section 41
Court orders
#- 1.The claim is dismissed in its entirety
- 2.No orders as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Constitution of Kenya, 2010 (Articles 41, 48, 50(b) invoked in submissions)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwema v Brand Kenya Board (Cause 1441 of 2014) [2022] KEELRC 1469 (KLR)", Case Analysis (2022). Cause No 1441 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1469/eng@2022-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.