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ELRCPartially AllowedMombasa ELRC Appeal from CM ELRC No 814 of 2019· [2023] KEELRC 1262 (KLR)

Hassan t/a Big Road Enterprises v Juma (Appeal E009 of 2022) [2023] KEELRC 1262 (KLR)

Employment and Labour Relations Court
11 May 2023
1,527 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cut a sacked worker's award because he returned from sick leave without a medical certificate, though he still received wage and leave dues.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Mombasa against the judgment of the magistrates' court (CM ELRC No 814 of 2019) delivered on January 21, 2022, which had found unfair termination and awarded the respondent notice pay, leave allowance, service pay, underpayments and 12 months' compensation. The respondent had claimed he was employed as a turn boy from February 13, 2015 and unfairly terminated on July 30, 2019. The appellant contended he was engaged as a tyre helper under contracts of April 1, 2016 and January 12, 2019, and left employment voluntarily after absconding duty without a medical certificate. The court, re-evaluating the evidence as on a first appeal, held that an employee permitted time off for illness must on return produce a certificate of incapacity under Sections 30 and 34 of the Employment Act; failing which he frustrates his own employment, justifying summary dismissal under Section 44(4)(a). The report to the labour officer on August 9, 2019 satisfied Section 18(5)(b). Notice pay and compensation were therefore disallowed. Under Section 90, claims were assessed only from the last written contract of January 12, 2019, treating the tyre helper as a general worker for minimum wage purposes. The appeal partially succeeded: underpayment of Kshs 53,010.30, July 2019 wages of Kshs 6,000, leave allowance of Kshs 5,541 and a certificate of service were awarded, and each party was ordered to bear its own costs.

Key legal issues

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01

Whether there was unfair termination

Holding

No unfair termination; the respondent absented himself without a certificate of incapacity and frustrated his own employment, so notice pay and compensation were unavailable

Reasoning

Absence from work due to sickness is allowed, but on return an employee must submit a certificate of incapacity under Sections 30 and 34 of the Employment Act. The respondent returned on July 30, 2019 without medical records and admitted this in testimony. Absence without justifiable cause is a ground for summary dismissal under Section 44(4)(a). The letter to the labour officer on August 9, 2019 showed compliance with Section 18(5)(b).

p. 2
02

Period of employment for assessment of dues

Holding

Claims assessed only from the last written contract of January 12, 2019; the period before that (casual terms in 2017, unaccounted 2018) cannot be counted

Reasoning

The respondent admitted signing contracts dated April 1, 2016 and January 12, 2019. Employment was regulated by a written contract in 2016, casual terms in 2017, nothing for 2018, and a new contract from January 12, 2019. Under Section 90 of the Act, the court looks only to the last written contract, and an employer may convert casual employment to written terms under Sections 8, 9 and 10.

p. 3
03

Underpayment

Holding

Tyre Helper is not a defined title under the Wage Orders; treated as a general worker with minimum wage of Kshs 13,572.90, giving underpayment of Kshs 53,010.30 for 7 months

Reasoning

The letter of employment described the respondent as a Tyre Helper, a title not defined under the Wage Orders. The nearest equivalent is a general worker, whose minimum wage from January 12, 2019 to July 30, 2019 was Kshs 13,572.90 against his wage of Kshs 6,000, yielding an underpayment of Kshs 7,572 per month, i.e. Kshs 53,010.30 for 7 months.

p. 3
04

Leave allowance

Holding

Leave pay computed under Section 28(1)(b) at 1.75 days per completed month for the 7 months, giving Kshs 5,541

Reasoning

Section 28(1)(b) of the Employment Act provides for not less than one and three-quarter days of leave with full pay for each completed month of service within a twelve-month leave-earning period where employment ends after two or more consecutive months. At Kshs 13,572.90 for the 7 months under the last contract, the leave pay due was Kshs 5,541.

p. 3

Legal principles established

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  • An employee allowed time off due to illness must on return submit a certificate of incapacity under Sections 30 and 34 of the Employment Act; failure frustrates his own employment
  • In assessing employment claims, the court can only go back to the last written contract by virtue of Section 90 of the Employment Act
  • An employer may convert casual employment into a written contract under Sections 8, 9 and 10 of the Employment Act
  • A certificate of service must be issued under Section 51 of the Act regardless of the reasons leading to termination

Court orders

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  1. 1.The judgment in Mombasa CMELRC No 814 of 2019 reviewed
  2. 2.Underpayment awarded at Kshs 53,010.30
  3. 3.Wage for July 2019 Kshs 6,000
  4. 4.Leave allowance for 7 months Kshs 5,541
  5. 5.Certificate of service to be issued
  6. 6.Each party to bear own costs

Authorities

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Legislation

  • Employment Act, 2007Sections 30, 34
  • Employment Act, 2007Section 44(4)(a)
  • Employment Act, 2007Section 18(5)(b)
  • Employment Act, 2007Section 90
  • Employment Act, 2007Sections 8, 9, 10
  • Employment Act, 2007Sections 35(5) and (6)
  • Employment Act, 2007Section 28(1)(b)
  • Employment Act, 2007Section 51

Cases cited (1)

  • BIFU v Barclays Bank of Kenya Limited
    [2014] eKLR
On appeal from
Mombasa Chief Magistrate's Court (CM ELRC)
CM ELRC No 814 of 2019
Jurisdiction invoked
First appellate jurisdiction over the subordinate court (ELRC appeal from magistrates' court); the court exercised its duty to re-evaluate evidence as a first appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Hassan t/a Big Road Enterprises v Juma (Appeal E009 of 2022) [2023] KEELRC 1262 (KLR)", Case Analysis (2023). Mombasa ELRC Appeal from CM ELRC No 814 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1262/eng@2023-05-11

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