Karani v Judicial Service Commission (Cause E191 of 2022) [2024] KEELRC 1175 (KLR)

The Claimant alleged her absences were due to severe pneumonia and malaria, but did not notify the employer of illness at the material time nor furnish a medical certificate as required by Section 30(2) of the Act and Clause E.1.6 of the HR Manual. Her medical report was procured nearly a year later, and her response to the show cause letter made no mention of ill health. Her absence was therefore unexplained and amounted to absence without lawful authority, justifying summary dismissal.

The Claimant was issued show cause letters, responded to them, was invited to a disciplinary hearing with notice of her right to be accompanied by a representative of her choice, attended and made representations, and was informed of her right of appeal which she exercised. There was no evidence she requested and was denied the disciplinary proceedings. The salary recovery for absent days was not double jeopardy but a natural consequence of not rendering service.

The Claimant did not dispute her absence on the stated dates, and the Court found the absence was without lawful authority. It would be unconscionable to allow her to retain salary for days she did not work. The doctrine of double jeopardy was misconstrued; the test for unfair dismissal is twofold - procedural and substantive fairness.