Mutua v Rushabh Industries Limited (Cause 872 of 2017) [2022] KEELRC 1489 (KLR)
The bottom line
#A Kenyan court ruled an employer must still follow fair dismissal procedures, even when an employee clearly abandons their job.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant absconded duty or was dismissed
The court found on the evidence that the claimant absconded duty; his claim of verbal permission was unproved and implausible given the employer's operational need for him.
The claimant produced no evidence of permission from his boss for an eight-day absence. Given that the machine he operated required two operators and his absence caused idleness and losses, the court found it implausible the employer would grant such leave without a replacement. The respondent's account was therefore credible, and abscondment is a ground for summary dismissal under section 44(4)(a) of the Employment Act.
Whether the claimant was subjected to due process
The dismissal was procedurally unfair because the respondent did not comply with section 41 of the Employment Act.
Despite having justifiable grounds, the employer took no steps upon noting the absence: no communication citing the claimant for abscondment, no show-cause notice, and no hearing. The supervisor's claim of phone calls was unsupported by evidence. The employer was duty-bound to notify the claimant of the reasons in a language he understood, in the presence of a fellow employee or union representative, and afford him a hearing.
Entitlement to reliefs
The claimant was awarded one month's notice pay, four months' gross salary as compensation, and salary for 16 days of October 2016; unpaid leave and public holidays were declined.
Notice pay and compensatory damages followed from the finding of procedural unfairness with a valid reason, the latter calibrated at four months. Salary for October was awarded because the respondent's assertion of full payment was unproved. The leave and public holiday claims failed because payment vouchers were produced and the claimant did not rebut them or specify unpaid periods.
Legal principles established
#- Even where an employer has justifiable reason to dismiss for abscondment, failure to comply with the procedure under section 41 of the Employment Act renders the dismissal procedurally unfair.
- An employer who alleges an employee absconded must adduce evidence of efforts to reach the employee and summon him to explain his absence.
Court orders
#- 1.Judgment entered in favour of the claimant against the respondent for Kshs 94,968.60 comprising four months' gross salary in compensation (Kshs 68,652.00), salary for 16 days in October 2016 (Kshs 9,153.60) and one month salary in lieu of notice (Kshs 17,163.00)
- 2.Total award to attract interest at court rates from the date of judgment until payment in full
- 3.The respondent to bear the costs of the claim
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (employment relationship between the parties)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutua v Rushabh Industries Limited (Cause 872 of 2017) [2022] KEELRC 1489 (KLR)", Case Analysis (2022). Cause No 872 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1489/eng@2022-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.