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ELRCDismissedNot stated in the judgment as provided· [2023] KEELRC 2296 (KLR)

Nyanchoka v Saab (K) Limited (Employment and Labour Relations Appeal E018 of 2022) [2023] KEELRC 2296 (KLR)

Employment and Labour Relations Court
29 September 2023
3,176 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that employees who skip work without permission can be lawfully dismissed, even where part of the employer's reasoning was unfair.

What this practically means

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Executive summary

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The appellant, employed by the respondent from 1st April 2010 and last earning Kshs.78,143.00, was summarily dismissed on 11th May 2018 after refusing to work extra unpaid shifts guarding expensive equipment on 7th March 2018 and failing to report to work on 8th March 2018. He sued for damages of Kshs.1,655,294.00 for unfair and unlawful dismissal; the trial court dismissed the suit on 27th September 2022, finding he had failed to discharge the burden under section 47(5) of the Employment Act. On appeal to the ELRC at Nyeri, Makau J framed three issues: validity and fairness of the reason for dismissal, procedural fairness, and entitlement to reliefs. On substance, the court found the reason tied to 7th March 2018 invalid and unfair - the night-guard duty was outside the appellant's technician role, unpaid, and assigned after a 12-hour shift without consultation. However, his failure to report to work on 8th March 2018 without permission or lawful cause was an offence under section 44(4)(a) and (c) justifying summary dismissal. On procedure, the court was satisfied that the show cause letter, disciplinary hearing with a right to a colleague companion, representations, and appeal satisfied section 41, notwithstanding the accuser sitting on the panel and the Managing Director alone determining the appeal. The appeal was accordingly dismissed with costs, affirming the trial court's judgment.

Key legal issues

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01

Validity and fairness of the reason for dismissal

Holding

The reason connected to 7th March 2018 (refusing extra unpaid guard duty after a 12-hour shift) was invalid and unfair, but the failure to report to work on 8th March 2018 was an offence under section 44(4)(a) and (c) justifying summary dismissal.

Reasoning

The court observed the assigned night-guard duty was outside the appellant's technician role, unpaid, and after he had worked over 12 hours; consultation rather than unilateral instruction was required. However, absence from work on 8th March without permission or lawful cause, and refusal to perform contractual duties, constituted fundamental breach justifying summary dismissal.

p. 6
02

Procedural fairness under section 41 of the Employment Act

Holding

Fair procedure was followed: show cause letter, hearing notice permitting a colleague as witness, oral and written representations, dismissal letter, and an appeal which was heard and determined.

Reasoning

The appellant was notified of the misconduct, allowed to call a colleague, made representations before a committee, and exercised his right of appeal. Despite irregularities conceded (the accuser sitting on the panel and the Managing Director alone determining the appeal), the court was satisfied section 41 was complied with.

p. 6
03

Entitlement to reliefs

Holding

Having found the dismissal substantively and procedurally fair, the appellant was not entitled to the reliefs sought and the appeal was dismissed with costs.

Reasoning

Since the court upheld the validity of the reason and the fairness of the procedure, the claim for damages of Kshs.1,655,294.00 failed, and the trial court's dismissal of the suit was affirmed.

p. 6

Legal principles established

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  • An employer bears the burden of proving the reason for termination, and termination is unfair where the employer fails to prove a valid and fair reason and fair procedure (ss. 43, 45(2) Employment Act).
  • Absence from the assigned place of duty without permission or lawful cause, and refusal to perform contractual duties, are offences justifying summary dismissal under section 44(4)(a) and (c) of the Employment Act.
  • A first appellate court must re-evaluate the evidence but will not interfere with findings of fact unless they are not based on evidence or law, or were reached on irrelevant factors or ignoring relevant ones.

Court orders

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  1. 1.Dismissal of the appeal with costs

Authorities

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Legislation

  • Employment Actsection 47(5)
  • Employment Actsection 43
  • Employment Actsection 45(2)
  • Employment Actsection 41
  • Employment Actsection 44(4)(a) and (c)
  • Employment Actsection 27
  • Employment Act, 2007section 41
  • ELRC Procedure RulesRule 28(3)

Cases cited (6)

  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Anthony Mkalla Chitavi v Malindi Water & Sewerage Co.Ltd
    (2013) eKLR
  • Egal Muhamed Osman v Inspector General of Police & 3 others
    (2015) eKLR
  • Judith Brenda Onyango v Sanlam General Insurance Limited
    (2020) eKLR
  • Peter Mbithi Mutia v Jubilee Insurance Company of Kenya Ltd
    (2020) eKLR
  • Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others
    (2020) eKLR
On appeal from
Trial court (magistrates' court)
Jurisdiction invoked
First appellate jurisdiction over the trial court's decision (ELRC appellate jurisdiction)

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, "Nyanchoka v Saab (K) Limited (Employment and Labour Relations Appeal E018 of 2022) [2023] KEELRC 2296 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2296/eng@2023-09-29

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