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ELRCPartially AllowedNot stated in judgment· [2024] KEELRC 1410 (KLR)

Ableey v Kenya Airports Authority (Cause E053 of 2023) [2024] KEELRC 1410 (KLR)

Employment and Labour Relations Court
20 March 2024
3,809 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that firing a worker for desertion during a court-protected strike is unfair, awarding him salary and compensation.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a security warden at Moi International Airport Mombasa from 12 February 2011, was terminated for alleged desertion of duty. He had withdrawn his labour from 17 August 2022 pursuant to a court order of 15 August 2022 in Nairobi Cause No. E259 of 2022 (Kenya Airports Authority v KAWU) permitting KAWU members to withdraw labour and protecting them from victimisation. The respondent contended the strike was unprotected, that the union withdrew its strike notice, and that the claimant absented himself for over seven consecutive days without cause, ignoring show cause and hearing notices while facing separate allegations of illegally facilitating miraa. The court found the issues to be whether termination was unfair and what remedies were due. It held that the industrial action was protected, that the claimant did not desert duty but was lawfully out of work for good cause, and that termination on account of a protected industrial action is not justified, rendering the termination unfair and unlawful. The claimant's record of pending disciplinary matters was considered under Section 45(5)(b), limiting compensation to one month's gross salary of Kshs. 88,689. Four months' unpaid salary of Kshs. 354,756 was awarded since termination took effect by the notice dated 9 March 2023, not the backdated date. Notice pay had already been paid. Claims for NSSF deductions, gratuity, and damages for unfair labour practices were refused; house allowance arrears and pension dues were made subject to the claimant's clearance. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the claimant deserted duty

Holding

The claimant did not desert duty; he was lawfully out of work pursuant to a court order permitting withdrawal of labour.

Reasoning

The court order of 15 August 2022 in Nairobi Cause No. E259 of 2022 (Kenya Airports Authority v KAWU) allowed unionised employees to withdraw labour and directed that they not be victimised. The claimant, a KAWU member, complied with that order. The alleged withdrawal of the strike notice was not proved, as it was not filed in court.

p. 7
02

Whether termination for desertion was fair and justified

Holding

Termination on account of desertion was not justified because the absence stemmed from protected industrial action.

Reasoning

Section 44(4)(a) permits summary dismissal for absence without good cause, but the claimant had good cause. Desertion requires abandonment and intention not to resume duty; the employer failed to prove desertion and failed to follow the Section 18(5) procedure before backdating termination.

p. 7
03

Remedies payable

Holding

Compensation of one month's gross salary and four months' unpaid salary awarded; other heads refused.

Reasoning

The claimant's record, including pending show cause for gross misconduct and illegal facilitation of miraa, was taken into account under Section 45(5)(b), reducing compensation to one month. The last gross salary was found to be Kshs. 88,689 as the employer did not file its payment statement. Salaries were due up to the notice dated 9 March 2023.

p. 7

Legal principles established

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  • Termination of employment on account of a protected industrial action is unjustified and constitutes unfair and unlawful termination.
  • Where an employer pleads desertion, it must demonstrate it made all efforts to trace the employee without success.
  • An employer who stops paying an employee it cannot trace should invoke Section 18(5) of the Employment Act by notifying the labour officer.

Court orders

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  1. 1.Compensation of Kshs. 88,689 (one month's gross salary)
  2. 2.Unpaid salaries for 4 months at Kshs. 354,756
  3. 3.Claimant to attend the shop floor and undertake clearance, upon which house allowance arrears and pension dues will be processed and paid, if due
  4. 4.Each party to bear its costs

Authorities

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Legislation

  • Employment ActSection 44(4)(a)
  • Employment ActSection 44(3)
  • Employment ActSection 45(5)(b)
  • Employment ActSection 18(5)
  • Labour Relations Actof 2007 (protected industrial action)

Cases cited (10)

  • Kiambaa Dairy Farmers Co-Operative Society Limited v Rhoda Njeri & 3 others
    [2018] eKLR Civil Appeal 180 of 2017
  • Pandya Memorial Hospital v Geeta Joshi
    [2020] eKLR Civil Appeal no. 62 of 2019
  • Bomas of Kenya v Thiriku
    (Civil Appeal 379 of 2019) [2022] KECA 795 (KLR)
  • Elizabeth Washeke and 62 Others v Airtel Networks (k) Ltd & another
    [2013] eKLR
  • Javan Kisoi Mulwa v S.A. An Interstate Traders (K) Ltd
    [2018] eKLR
  • Philomena Kiprotich Kirui v Lessos Veterinary Suppliers Ltd
    [2016] eKLR
  • Joash Alubale Jacob v Mega Pack Limited
    [2019] eKLR Cause No. 248 of 2017
  • Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School
    [2015] eKLR Cause No. 295 of 2014
  • Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers v Cool Rivers Hotel Ltd
    (2017) eKLR
  • Kenya Airports Authority v Kenya Aviation Workers Union (KAWU)
    Nairobi Cause No. E259 of 2022
Jurisdiction invoked
Employment and Labour Relations Court original jurisdiction under the Employment Act, 2007

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, "Ableey v Kenya Airports Authority (Cause E053 of 2023) [2024] KEELRC 1410 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1410/eng@2024-03-20

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