Wachira v Tusker Mattresses Limited (Cause 406 of 2017) [2023] KEELRC 1976 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the dismissal was substantively and procedurally fair
The dismissal was substantively justified (unauthorised absence) but procedurally unfair as no hearing was afforded; it was therefore wrongful, unfair, and unlawful.
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.
Whether the medical note excused the absence
No - the medication form was dated after the absence began and did not certify incapacity for work.
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.
Entitlement to reliefs under the CBA
Claimant awarded salary arrears, two months' notice pay, service pay, gratuity, and three months' compensation; house allowance denied.
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.
Legal principles established
#- 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
#- 1.A declaration be and is hereby issued that the dismissal of the Claimant by the Respondent was wrongful, unfair, and unlawful.
- 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.All the other claims are denied.
- 4.Costs of the cause to the Claimant.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations claims under the Employment Act and labour relations law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.