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ELRCDismissed· [2023] KEELRC 629 (KLR)

Hillary v Fargo Courier Ltd (Employment and Labour Relations Cause 138 of 2017) [2023] KEELRC 629 (KLR)

Employment and Labour Relations Court
7 March 2023
JGJacob Gakeri
4,172 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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An employee who stays away from work without a doctor's sick-off note can be lawfully dismissed, even after an accident.

What this practically means

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Executive summary

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The Claimant, a courier escort employed by the Respondent from May 6, 2015 to May 27, 2016, sued alleging unfair termination. He claimed he was involved in a road traffic accident on December 23, 2015, suffered recurring back pains, and that after notifying his supervisor by sms that he was unwell on May 3, 2016, he was nonetheless issued a notice to show cause and summarily dismissed for absconding duty. He sought a declaration that the dismissal was unfair, one month's salary in lieu of notice, unpaid leave for 22 days, exemplary damages and 12 months' gross pay as compensation, totalling Kshs 292,735, plus costs. The Respondent admitted the employment but maintained the Claimant absconded duty for 12 days, was accorded a fair hearing, and failed to produce a sick off certificate, though it admitted owing 22 days accrued leave, uniform refund and two days' salary. The court framed two issues: whether the termination was unfair and whether the Claimant was entitled to the reliefs sought. Applying Sections 41, 43, 44 and 45 of the Employment Act, the court held the employer had a valid and fair reason - the Claimant could not account for 11 days' absence, failed to avail a doctor's sick off, and made no effort to keep the employer informed. The procedure under Section 41 was also satisfied: written response, oral hearing, right to accompaniment and an adjournment to produce documents. Allegations of coercion in signing the minutes were unproven. The suit was dismissed with each party bearing own costs.

Key legal issues

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01

Whether the Respondent had a valid and fair reason for the dismissal

Holding

The employer had a justifiable reason - absenteeism without lawful cause for 11 days

Reasoning

The Claimant was attended to at hospital on May 4, 2016 but could not account for May 5 to May 16. Permission to go to hospital was not leave to stay away for 11 days. He failed to avail a doctor's sick off or keep the employer informed of his recovery, conduct falling below that of a diligent employee. The dismissal fell under Section 44(4)(a) of the Employment Act.

p. 7
02

Whether the procedure adopted complied with Section 41 of the Employment Act

Holding

The procedure was fair; the Claimant was notified, heard, accompanied by a colleague and given time to produce documents

Reasoning

The Claimant received a notice to show cause, responded in writing, attended a disciplinary hearing accompanied by Mr Nelson Speke, signed the minutes without protest, and was granted an adjournment to obtain documentation. The allegation of coercion was unproven and the request to call the supervisor was never made at the hearing.

p. 9

Legal principles established

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  • For a termination to be fair it must be both substantively justified and procedurally fair
  • An employee absent from work must keep the employer informed and avail a doctor's sick off as evidence of lawful absence

Court orders

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  1. 1.The suit is dismissed.
  2. 2.Parties to bear own costs.

Authorities

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Legislation

  • Employment ActSection 45
  • Employment ActSection 45(4)(b)
  • Employment Act, 2007Section 44(4)(a)
  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 47(5)

Cases cited (7)

  • Janet Nyandiko V Kenya Commercial Bank Ltd
    (2017) eKLR
  • National Bank of Kenya V Samuel Nguru Mutonya
    (2017) eKLR
  • Pius Machafu Isindu V Lavington Security Guards Ltd
  • Walter Ogal Anuro V Teachers Service Commission
    (2013) eKLR
  • Naima Khamis V Oxford University Press (EA) Ltd
    (2017) eKLR
  • Rodgers Titus Wasike V General Motors East Africa Ltd
    (2020) eKLR
  • Postal Corporation of Kenya V Andrew K Tanui
    (2019) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

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, "Hillary v Fargo Courier Ltd (Employment and Labour Relations Cause 138 of 2017) [2023] KEELRC 629 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/629/eng@2023-03-07

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