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ELRCDismissedELRC NRB 480 OF 2017· [2024] KEELRC 1109 (KLR)

Masinde v G4S Security Services Kenya Limited (Cause 480 of 2017) [2024] KEELRC 1109 (KLR)

Employment and Labour Relations Court
3 May 2024
MOMAUREEN ONYANGO
2,749 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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An employee claiming unfair termination in Kenya must prove their case with documents like medical certificates, or the claim will fail.

What this practically means

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Executive summary

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The Claimant, a security guard, sued the Respondent alleging wrongful or unlawful dismissal. He was involved in a road accident on 17th June 2015 while on annual leave, fracturing his left leg, and reported the accident to the Respondent, which paid him salary for 90 days in line with its sick leave policy. When he reported back in January 2016, the Respondent said he still had an uncovered wound and could not be deployed until he produced a medical certificate of fitness. The Claimant claimed he delivered a certificate from St. Damiano Hospital, Bungoma, but the Respondent denied receiving it and never recalled him. The Claimant argued that the Respondent's two-year silence amounted to summary and constructive dismissal, and sought a declaration of unfair termination and general damages. The Respondent denied terminating the employment, contending the Claimant was still on sick leave and free to resume duty upon producing a clean bill of health. The court framed three issues: whether employment was terminated, whether any termination was unfair, and entitlement to reliefs. Relying on section 30 of the Employment Act, it found no certificate of incapacity covering the entire absence had been produced. Since the Claimant had not absconded and the Respondent knew he was on sick leave, there was no duty to inquire after him. The court held the Claimant failed to prove unfair termination, including the constructive dismissal case raised in submissions, and dismissed the suit with each party bearing its own costs.

Key legal issues

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01

Whether the Claimant's employment was terminated

Holding

The court found no termination occurred; the Claimant was on sick leave and free to resume duty upon producing a fitness certificate

Reasoning

Both parties agreed the Claimant reported an accident and was deemed on sick leave, with salary paid for 90 days. The Respondent's position was that the Claimant was asked to continue treatment and return with a medical certificate of fitness. The Claimant did not produce such a certificate covering the entire absence period, and the employer never wrote to him as he had not absconded. The Claimant therefore failed to prove summary dismissal or constructive termination.

p. 5
02

Whether the termination was unfair

Holding

Not established, as no termination was proved

Reasoning

Since the court found no termination of employment occurred, the question of unfairness under section 47(5) of the Employment Act did not arise. The burden lay on the Claimant to prove unfair termination, which he failed to discharge, having neither produced a valid certificate of incapacity nor proved constructive dismissal as pleaded.

p. 5
03

Constructive dismissal raised in submissions

Holding

Not proved; ingredients of constructive dismissal were not met

Reasoning

The Respondent objected that constructive dismissal was raised only in submissions and not pleaded. Relying on the Coca Cola and Daniel Toroitich Arap Moi cases, the Respondent argued submissions cannot substitute evidence. The court found no evidence of repudiatory breach or resignation, and that the employer's conduct did not meet the contractual or unreasonable test for constructive dismissal.

p. 4

Legal principles established

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  • An employee on sick leave must produce a certificate of incapacity to work covering the period of absence to be entitled to sick leave
  • Where an employee has not absconded duty and the employer knows he is on sick leave, the employer has no duty to inquire into his whereabouts

Court orders

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  1. 1.An order dismissing the suit
  2. 2.Each party shall bear its costs

Authorities

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Legislation

  • Employment ActSection 30 (Sick leave)
  • Employment ActSection 47(5)
  • Evidence ActSections 107 and 108

Cases cited (4)

  • Coca Cola East & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • Kenneth Kimani Mburu & another v Kibe Muigai Holdings Limited
    [2014] eKLR
  • Ayub Kombe Ziro v Umoja Rubber Products Limited
    [2022] eKLR
  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act

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, "Masinde v G4S Security Services Kenya Limited (Cause 480 of 2017) [2024] KEELRC 1109 (KLR)", Case Analysis (2024). ELRC NRB 480 OF 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1109/eng@2024-05-03

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