Alumbe v Ideal Appliances Ltd (Cause 1050 of 2018) [2023] KEELRC 711 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the termination on medical grounds was lawful and procedurally fair
The termination was unlawful and unfair because the respondent failed to conduct an independent medical assessment and failed to afford the claimant the section 41(1) hearing, ignoring the medical recommendation for light duties
The court found the termination letter cited the claimant's poor health and inability to meet sales targets as the reason. Section 41(1) is a mandatory provision requiring explanation and presence of a fellow employee or representative. The respondent also failed to put the claimant through an independent medical assessment as required before termination on medical incapacity grounds, and disregarded the medical opinion that she could resume on light duties.
Whether the claimant absconded from duty
The respondent failed to prove abandonment; the termination letter did not allege absconding, and desertion cannot be presumed
The respondent pleaded that the claimant failed to report back to work and absconded, but the termination letter itself cited 'medical condition' with no reference to abscondment. Absconding is gross misconduct under section 44(4), and the burden lay on the respondent to prove deliberate, unjustified absence and that it terminated on grounds of desertion. No such proof was tendered, so the abscondment defence failed.
Effect of the claimant's advocate's email conceding three months' compensation
The email was not a consent order and did not cap the claimant's entitlement at three months' compensation
The respondent argued that an email from the claimant's advocate dated 12th July 2022 agreed to compensation of three months' salary, limiting any award. The court rejected this, holding that an advocate's email, even if written, is not a consent order and cannot bind the claimant or restrict the court's assessment of remedies.
Legal principles established
#- Before terminating an employee on grounds of physical incapacity or poor health, the employer must follow the mandatory procedure in section 41(1) of the Employment Act, including explaining the reasons to the employee in the presence of a fellow employee or shop floor union representative
- An employer cannot terminate an employee on account of poor health without subjecting the employee to an independent medical assessment
- Absconding/desertion must be deliberately and unjustifiably established by the employer; it cannot be presumed from equivocal acts
- An employer has a duty to reasonably accommodate an employee who is injured or taken ill during employment, beyond grant and exhaustion of sick leave
- An advocate's email conceding to a settlement figure is not a consent order binding on the claimant
Court orders
#- 1.Declaration that the termination of the claimant's employment was unlawful and unfair
- 2.Award to the claimant of the equivalent of 4 months' salary as compensation for unfair and unlawful termination, being Kshs 29,169 x 4 = Kshs 116,676/-
- 3.Award of costs of the suit to the claimant
- 4.Award of interest at court rates from the date of judgment until full payment
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Employment Act 2007 (memorandum of claim for unfair termination)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alumbe v Ideal Appliances Ltd (Cause 1050 of 2018) [2023] KEELRC 711 (KLR)", Case Analysis (2023). Not stated in the judgment text provided (Employment and Labour Relations Court cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/711/eng@2023-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.