Mugane v Kenya Revenue Authority (Cause E449 of 2020) [2023] KEELRC 3220 (KLR)
The bottom line
#A Kenyan court upheld a dismissal for absenteeism because the employee had admitted being absent in writing, even though he missed the disciplinary hearing by accident.
What this practically means
#Executive summary
#Key legal issues
#Existence of a contract of service
The parties were in a contract of service.
The court found no dispute between the parties on the existence of the employment relationship; both proceeded on the basis that the claimant was employed by the respondent under successive fixed-term contracts from September 2018 until termination in March 2020.
Termination and its reason
The contract was terminated by letter dated 06.03.2020 for absenteeism without permission for 17 days and failure to attend the disciplinary hearing on 29.01.2020.
The termination letter cited absence without permission or lawful cause for the days in the show cause letter and breach of section 44(4)(a) of the Employment Act and clause 6.1.1 of the respondent's code of conduct.
Whether the termination was unfair (substantive and procedural fairness)
The termination was not unfair; the reason was substantially genuine and fair procedure was followed.
The claimant admitted in his memo of 21.11.2019 that he had been absent without formal leave, and in cross-examination admitted absence on 17.09.2019 with no sick leave chit. Although the claimant was not aware of the disciplinary hearing (the invitation went to a wrong phone number), his admission in the show-cause response established the misconduct, satisfying sections 43 and 45 of the Employment Act.
Remedies
Only the certificate of service was awarded; monetary remedies collapsed with the dismissal of the unfair termination claim.
Section 51 of the Employment Act entitles an employee to a certificate of service regardless of the outcome of the unfair termination claim. As the claim failed, compensation, notice pay and service pay were not available.
Legal principles established
#- An admission in a response to a show cause notice that the employee was absent without permission establishes a valid reason for termination even if the employee did not attend the disciplinary hearing.
- An employee is entitled to a certificate of service under section 51 of the Employment Act notwithstanding that the claim for unfair termination fails.
Court orders
#- 1.The claimant to deliver the certificate of service in 30 days from the date of judgment
- 2.Each party to bear own costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Articles 41 and 47 of the Constitution pleaded by the claimant)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mugane v Kenya Revenue Authority (Cause E449 of 2020) [2023] KEELRC 3220 (KLR)", Case Analysis (2023). Not stated in the judgment text supplied. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3220/eng@2023-12-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.