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ELRCPartially AllowedCause No 406 of 2017· [2023] KEELRC 1976 (KLR)

Wachira v Tusker Mattresses Limited (Cause 406 of 2017) [2023] KEELRC 1976 (KLR)

Employment and Labour Relations Court
31 July 2023
2,929 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that even a genuine workplace offence cannot justify dismissal without giving the employee a hearing first, awarding over Kshs 484,000.

What this practically means

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Executive summary

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In this Employment and Labour Relations Court claim at Nakuru, the Claimant, a shop-assistant engaged by the Respondent with effect from May 1, 2000 at a gross salary of Kshs 17,159.56, was summarily dismissed on February 10, 2017 for absenteeism after being away from work from January 31, 2017. He asserted he had obtained leave of absence to seek medical attention and exhibited a medication form from Twins Medical Clinic. The Respondent filed a statement of response denying the claim but called no evidence at the hearing on September 20, 2022, so the matter proceeded ex parte. The court framed three issues: whether the termination was unfair or wrongful, entitlement to reliefs, and costs. It held that although the Claimant's absence was unauthorised - the medical note did not certify incapacity and no formal sick-off was proved - the Respondent made no effort to trace him and dismissed him without a hearing, breaching Sections 41, 43, 45 and 47 of the Employment Act. The dismissal was declared wrongful, unfair, and unlawful, with the Claimant largely to blame for the absence. The court applied the CBA, which was undisputed, awarding salary arrears of Kshs 3,088.20, two months' notice pay of Kshs 35,823.12, service pay of Kshs 161,204.04, gratuity of Kshs 230,291.49 for 16 completed years, and three months' salary (Kshs 53,734.68) as compensation under Section 49. House allowance was denied as subsumed in gross pay, and the 12-month compensation claim was refused for lack of justification. Judgment delivered virtually at Nakuru on July 31, 2023 by David Nderitu, Judge, with costs to the Claimant.

Key legal issues

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01

Whether the dismissal was substantively and procedurally fair

Holding

The dismissal was substantively justified (unauthorised absence) but procedurally unfair as no hearing was afforded; it was therefore wrongful, unfair, and unlawful.

Reasoning

The Claimant absented himself from duty without leave; his medical note did not state he needed to stay off work. However, the Respondent made no effort to trace him, and on his return handed him a dismissal letter without any hearing. Dismissal without hearing breached Sections 41, 43, 45 and 47 of the Employment Act and was excessive, drastic and unreasonable in the circumstances.

02

Whether the medical note excused the absence

Holding

No - the medication form was dated after the absence began and did not certify incapacity for work.

Reasoning

The Twins Medical Clinic form was dated February 6, 2017, yet the absence ran from January 31, 2017, and the form did not state the Claimant needed to stay away from work. No formal sick-off document or named leave-granting manager supported the claim, so the absence remained unauthorised.

p. 4
03

Entitlement to reliefs under the CBA

Holding

Claimant awarded salary arrears, two months' notice pay, service pay, gratuity, and three months' compensation; house allowance denied.

Reasoning

The undisputed CBA provided two months' notice pay for over 10 years' service and gratuity at 20 days' salary per completed year (16 years). The Respondent's memo offering service pay admitted it was payable, and clause 32 of the CBA showed no pension scheme existed. Compensation was fixed at three months under Section 49 given the Claimant's own blame.

p. 6

Legal principles established

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  • An employer must afford an employee both substantive and procedural fairness before termination, including a hearing.
  • Where a CBA or contract provides more favourable terms than the Employment Act, the more favourable terms apply.

Court orders

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  1. 1.A declaration be and is hereby issued that the dismissal of the Claimant by the Respondent was wrongful, unfair, and unlawful.
  2. 2.The Claimant is awarded a total of Kshs 484,141.53 comprising salary arrears Kshs 3,088.20; salary in lieu of notice Kshs 35,823.12; service pay Kshs 161,204.04; gratuity Kshs 230,291.49; and compensation for wrongful, unfair, and unlawful dismissal Kshs 53,734.68.
  3. 3.All the other claims are denied.
  4. 4.Costs of the cause to the Claimant.

Authorities

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Legislation

  • Employment ActSections 41, 43, 45, 47
  • Employment ActSection 49

Cases cited (7)

  • Mary Chemweno V Kenya Pipeline Company Limited
    (2017) eKLR
  • Loice Otieno V Kenya Commercial Bank Limited
    (2013) eKLR
  • Walter Ogal Anuro V Teachers Service Commission
    (2012) eKLR
  • Boniface Francis Mwangi V BOM Iyego Secondary School
    (2019) eKLR
  • Simon Mbithi Mbane V Inter Security Services Ltd
    (2018) eKLR
  • Judith Atieno Owuor V Sameer Agriculture and Livestock Limited
    (2020) eKLR
  • Renson Iddi Nyambu V Mini Bakeries (Mombasa) Limited
    (2018) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations claims under the Employment Act and labour relations law

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, "Wachira v Tusker Mattresses Limited (Cause 406 of 2017) [2023] KEELRC 1976 (KLR)", Case Analysis (2023). Cause No 406 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1976/eng@2023-07-31

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