Ableey v Kenya Airports Authority (Cause E053 of 2023) [2024] KEELRC 1410 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the claimant deserted duty
The claimant did not desert duty; he was lawfully out of work pursuant to a court order permitting withdrawal of labour.
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.
Whether termination for desertion was fair and justified
Termination on account of desertion was not justified because the absence stemmed from protected industrial action.
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.
Remedies payable
Compensation of one month's gross salary and four months' unpaid salary awarded; other heads refused.
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.
Legal principles established
#- 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
#- 1.Compensation of Kshs. 88,689 (one month's gross salary)
- 2.Unpaid salaries for 4 months at Kshs. 354,756
- 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.Each party to bear its costs
- Jurisdiction invoked
- Employment and Labour Relations Court original jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.