Mondo v United Millers Limited (Cause 379 of 2018) [2023] KEELRC 925 (KLR)
The bottom line
#A Kenyan court ruled a worker who vanished from duty without telling his employer had effectively quit, but still deserved his service pay and one month's sick salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was terminated or absconded duty
The Claimant was not terminated; he absconded duty
The disciplinary process after the January 4, 2016 accident resulted only in a warning letter, not termination. The Claimant's salary was stopped from February 2016 and he did not account for his whereabouts between February and August 2016. Although the employer made no effort to trace him, the employee equally failed to communicate his illness, and under Clause 42 of the CBA absence exceeding 14 days without notification is regarded as leaving employment.
Entitlement to notice pay
Claim for pay in lieu of notice dismissed as untenable given finding of abscondment
Having found that the Claimant absconded rather than being terminated, there was no termination to attract pay in lieu of notice.
Entitlement to sick pay and medical refund
One month salary for December 2015 awarded as sick leave pay; medical refund claim dismissed for lack of proof
The Respondent did not dispute awareness of the Claimant's December 2015 hospitalization and readmitted him in January 2016, justifying sick pay. The medical expenses claim failed for insufficient proof.
Terminal benefits/service pay under CBA
15 days' pay per completed year of service for 13 years awarded (Kshs 245,505)
The CBA entitles an employee who is terminated or resigns with proper notice to terminal dues including 15 days' pay per completed year of service. The Claimant completed 13 undisputed years. With no payslips produced, the Court used the Claimant's final daily wage of Kshs 1,259.
Legal principles established
#- An employer alleging desertion must demonstrate efforts to trace the employee before treating them as dismissed
- An employee also has an obligation to inform the employer of the reason for absence
- Under the CBA, absence without leave for more than 14 consecutive days without notification is regarded as leaving employment
Court orders
#- 1.A declaration that the Claimant was not terminated, absconded duty.
- 2.That the Respondent to pay the Claimant Service pay at Kshs 245,505/-
- 3.Salary for December, 2015 at Kshs 37,770/=
- 4.Half the costs of the suit.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and the CBA; dispute over whether medical reimbursement claim falls outside the Court's jurisdiction (Work Injuries Benefits Act, 2007 raised by Respondent)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mondo v United Millers Limited (Cause 379 of 2018) [2023] KEELRC 925 (KLR)", Case Analysis (2023). ELRC Claim (Kisumu), Memorandum of Claim dated October 16, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/925/eng@2023-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.