Madegwa v Super Bargains & Hardware Limited (Cause 219 of 2017) [2023] KEELRC 2178 (KLR)
The bottom line
#A Kenyan court ruled a worker who walked off the job ended his own employment, but his employer still had to pay damages for skipping proper termination procedure.
What this practically means
#Executive summary
#Key legal issues
#Nature of the employment relationship
The Claimant, though engaged as a casual loader, was deemed a month-to-month employee with a last gross salary of Kshs.16,000/=.
Under Section 37(1) of the Employment Act, a casual employee who works the equivalent of at least one month is deemed employed on monthly wages. The muster roll produced by the Respondent, undisputed by the Claimant, showed regular periodic pay rising to Kshs.16,000/=. The court held that in law the Claimant could not remain a casual employee for the period from 2008 to 2016.
Dismissal or desertion
The Claimant was not dismissed; he absconded duty in early November 2016 and deserted, terminating his own employment, but the Respondent failed to formalize the separation through due process.
The Claimant's pleadings (transfer to another company) and testimony (injury at work) were contradictory and unsupported by any documents, while the muster roll showed he worked July to October 2016. His demand letter of 7th November 2016 signalled he would not return. The Respondent nonetheless made no effort to trace him or invite him to a disciplinary process after receiving the demand letter, rendering the termination un-procedural.
Entitlement to reliefs
Only two months' salary as compensation for un-procedural termination and admitted salary arrears of Kshs.1,846/= were awarded; all other prayers failed.
Having found desertion by the Claimant but failure of due process by the Respondent, the court exercised discretion under Section 49 to award two months' pay. Underpayments were dismissed as time-barred beyond April 2014 and unproven within the limitation period since the Claimant earned above the gazetted minimum wage. Service pay failed due to NSSF deductions; general damages failed for want of pleaded and proved specific damage.
Legal principles established
#- A casual employee engaged continuously for a period equivalent to at least one month is deemed under Section 37(1) of the Employment Act to be employed on month-to-month terms
- An employee who absconds duty and signals no intention of returning terminates his own employment; however, the employer remains bound to attempt due process to formalize the separation
- Substantive and procedural fairness require a valid reason and proper procedure before termination; the burden of proving underpayment rests on the employee
- Employment claims are time-barred beyond three years preceding filing under Section 90 of the Employment Act
Court orders
#- 1.Declaration that the Claimant was an employee of the respondent on a contract of service running from month to month
- 2.Declaration that the Claimant absconded and thereafter deserted duty effectively terminating his contract of employment
- 3.Finding that the Respondent failed to subject the Claimant to due process
- 4.Award to the Claimant of a total of Kshs.33,846/= with interest from date of judgment less statutory deductions, comprising Kshs.32,000/= compensation for termination without due process and Kshs.1,846/= salary arrears
- 5.All other claims denied
- 6.Claimant awarded costs of the cause
- Jurisdiction invoked
- Employment and Labour Relations Court original jurisdiction under the Employment Act (ELRC cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Madegwa v Super Bargains & Hardware Limited (Cause 219 of 2017) [2023] KEELRC 2178 (KLR)", Case Analysis (2023). Cause No 219 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2178/eng@2023-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.