Onyango v Trees for the Future INC (Cause E006 of 2023) [2024] KEELRC 1353 (KLR)
The bottom line
#A Kenyan court ruled an employer fairly dismissed an employee who skipped six days of work without notifying anyone, but still had to pay his terminal dues.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was constructively dismissed
Claimant was not constructively dismissed; no evidence of resignation due to hostile work environment
The Claimant pleaded constructive dismissal but led no evidence in support. Citing CMC Aviation, the court held averments remain unproven until established. The Respondent relied on Coca Cola East Africa and Milton M Isanya for the proposition that resignation is a vital ingredient of constructive dismissal, and the Claimant never resigned - he was taken through a disciplinary process culminating in summary dismissal.
Whether the dismissal was procedurally fair under Section 41 of the Employment Act
Dismissal was procedurally fair
The Claimant was issued a notice to show cause, responded to it, and attended a disciplinary hearing where he made representations and was informed of his right to a representative of his choice. The second disciplinary invite carried the additional charge of absconding duty, which he had opportunity to respond to at the hearing. Following Philip Kimosop and Anthony Mkala Chitavi, the court found the Respondent substantially adhered to procedural fairness.
Whether the dismissal was substantively fair under Sections 43, 45 and 47(5)
Dismissal was substantively fair
The employer must prove valid and fair reasons for termination. The reason for summary dismissal was absconding duty, the other charges having been dropped. The Claimant admitted absenting himself for six days, knew the sickness notification procedure but did not follow it, never informed the employer he was unwell, and produced no supporting medical documents. Under Section 44(4)(a), absenteeism justifies summary dismissal.
Whether the Claimant is entitled to the remedies sought
Claim dismissed save for terminal dues of Kshs. 240,000 if not already paid
Having found the dismissal fair, the Claimant was not entitled to payment for the remainder of the contract, costs or interest, particularly as his contract had no provision for payment of the remainder on premature termination. However, the court held him entitled to terminal dues of Kshs. 240,000 if not already released, and noted a certificate of service had been issued.
Legal principles established
#- Pleadings are not evidence; no decision may be founded on unproved averments
- Constructive dismissal requires resignation by the employee
- Unexplained absenteeism from duty justifies summary dismissal under Section 44(4)(a) of the Employment Act
Court orders
#- 1.Finding that the Claimant was not constructively dismissed
- 2.Finding that the Claimant's dismissal was procedurally and substantively fair
- 3.Claimant entitled to terminal dues in the sum of Kshs. 240,000 if not already released to him
- 4.Claimant at liberty to collect his certificate of service if not already done
- 5.Claimant's claim dismissed
- 6.Claimant to bear the costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (not expressly cited in judgment); claim founded on Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onyango v Trees for the Future INC (Cause E006 of 2023) [2024] KEELRC 1353 (KLR)", Case Analysis (2024). Cause No E006 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1353/eng@2024-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.