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ELRCPartially AllowedCause No 185 of 2018· [2023] KEELRC 2576 (KLR)

Kenja v Raiply Woods (K) Limited (Cause 185 of 2018) [2023] KEELRC 2576 (KLR)

Employment and Labour Relations Court
12 October 2023
MOMaureen Onyango
2,258 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employer unfairly dismissed a long-serving worker for absenteeism when his absence was actually due to sickness with permission.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a mechanical fitter from August 1993, sued for a declaration of unfair termination, reinstatement, terminal benefits of Kshs. 431,317.6, costs, and a certificate of service, after his dismissal on 8th April 2016 for alleged absenteeism without leave. He maintained he was on approved sick off for neuro issues. The Respondent asserted the dismissal followed prior warnings for persistent absenteeism and a disciplinary process. The suit was disposed of by documents, witness statements and written submissions because the Claimant could not attend court owing to mental instability. The Court framed two issues: whether the termination was fair, legal and procedural, and whether the reliefs were merited. Applying sections 41, 43, 44(4) and 45 of the Employment Act, the Court held the burden lay on the employer to prove valid reasons and procedural fairness. Absenteeism justifies dismissal only where the absence is without permission or lawful cause. Although the Respondent alleged a disciplinary hearing, no evidence of one existed on record; the dismissal letter made no reference to a hearing. The Court found the Claimant had permission for his absence and that his absenteeism may have resulted from mental instability which the Respondent wrongly treated as misconduct rather than illness. The termination was therefore unfair. The Court deemed the Claimant terminated on medical grounds, awarding service pay of 21 days per completed year under clause 18 of the CBA (Kshs. 430,534), two months' notice pay (Kshs. 58,456), pro rata leave (Kshs. 5,125.40), a certificate of service under section 51, costs of the suit, and interest from the date of judgment. Reinstatement was not granted and the pleaded indemnity-agreement figure was not awarded as such.

Key legal issues

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01

Whether the Claimant's employment was terminated fairly, legally and procedurally

Holding

The termination was unfair - the Respondent failed to prove a disciplinary hearing was held under section 41, and the Claimant had a valid reason (sickness) and permission for his absence

Reasoning

The Court set out sections 41, 43 and 45(2) of the Employment Act requiring an employer to prove both valid reasons and procedural fairness. Although the Respondent alleged a disciplinary meeting, no evidence of such a hearing existed; the record showed only a show cause letter and a dismissal letter making no reference to a hearing. Further, the Claimant had produced a response showing he was given sick off with permission, and the Court found his absenteeism may have stemmed from undiagnosed mental instability that the Respondent should have treated as illness requiring a sympathetic approach.

p. 6
02

Whether the reliefs sought are merited

Holding

The Claimant was deemed terminated on medical grounds and awarded terminal dues under the CBA, notice pay, pro rata leave, a certificate of service, costs and interest from judgment

Reasoning

Having found the termination unfair, the Court drew on the CBA and the Employment Act. The Claimant, having served 23 years, was deemed terminated on medical grounds and awarded service pay of 21 days per completed year under clause 18 of the CBA, two months' notice pay under clause 19, pro rata leave for 2016, and a certificate of service under section 51 of the Employment Act. Reinstatement was not granted; monetary reliefs were substituted. Costs and interest from judgment followed the success.

p. 6

Legal principles established

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  • The burden of proof in termination of employment claims lies on the employer, who must prove both valid reasons and procedural fairness
  • Absenteeism constitutes gross misconduct justifying dismissal only where the absence is without permission or lawful cause
  • A termination without proof of a disciplinary hearing under section 41 is unfair where the employee also had valid reason and permission to be absent

Court orders

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  1. 1.The Claimant to be deemed to have been terminated on medical grounds and be paid terminal dues in accordance with clause 18 of the CBA
  2. 2.Payment of 21 days' pay for each completed year of service as per clause 18 of the CBA (29,228 x 21 years) - Kshs. 430,534
  3. 3.Payment of notice pay (2 months) - Kshs. 58,456
  4. 4.Payment of pro rata leave - Kshs. 5,125.40
  5. 5.Claimant to be issued with a certificate of service in terms of section 51 of the Employment Act unless already issued
  6. 6.Claimant to have the costs of the suit
  7. 7.Interest to accrue from date of judgment

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 44(4)
  • Employment ActSection 45(1)
  • Employment ActSection 51
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 44(4), 45 and 51)

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, "Kenja v Raiply Woods (K) Limited (Cause 185 of 2018) [2023] KEELRC 2576 (KLR)", Case Analysis (2023). Cause No 185 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2576/eng@2023-10-12

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