Nyanchoka v Saab (K) Limited (Employment and Labour Relations Appeal E018 of 2022) [2023] KEELRC 2296 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Validity and fairness of the reason for dismissal
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.
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.
Procedural fairness under section 41 of the Employment Act
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.
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.
Entitlement to reliefs
Having found the dismissal substantively and procedurally fair, the appellant was not entitled to the reliefs sought and the appeal was dismissed with costs.
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.
Legal principles established
#- 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
#- 1.Dismissal of the appeal with costs
- On appeal from
- Trial court (magistrates' court)
- Jurisdiction invoked
- First appellate jurisdiction over the trial court's decision (ELRC appellate jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.