Aminga v Radar Limited (Cause 994 of 2018) [2023] KEELRC 2501 (KLR)

The Respondent alleged the Claimant absconded duty for about a month. However, the Claimant was referred to Zambezi Hospital, the Respondent's facility, and his medical bills were paid by the Respondent, facts never refuted. Warning letters alleging negligence were never produced despite ten years of service with upward salary review. Absenteeism under section 44(4)(g) of the Employment Act was therefore not proved, so there was no valid and fair reason for dismissal.

Section 41 of the Employment Act requires an employer to explain the reasons for termination and hear the employee's representations, even for summary dismissal under section 44. The Respondent's witness acknowledged no disciplinary hearing was convened and no show cause letter was issued because they could not reach the Claimant. The court rejected the Respondent's view that section 41 did not apply to summary dismissal, holding the process mandatory.

Notice pay was allowed as the reason for dismissal was substantially unjustified. Leave pay was granted because leave forms produced bore no signature from the Claimant. Considering his ten years of service as a security guard with no special skills, six months' salary was reasonable compensation. A certificate of service under section 51 was to be reissued. Other prayers lacked evidential support.