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ELRCDismissedNot stated in judgment· [2024] KEELRC 1501 (KLR)

Kithuku v Toyota Tsusho East Africa Limited (Cause 1410 of 2018) [2024] KEELRC 1501 (KLR)

Employment and Labour Relations Court
14 June 2024
JRJames Rika
1,367 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 employees cannot take annual leave without employer approval, and dismissed an unfair termination claim in full.

What this practically means

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Executive summary

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The Claimant, employed as an Accounts Assistant on 31st January 2014 and confirmed on 1st May 2014, was summarily dismissed by the Respondent on 26th July 2018 on grounds of failure to follow her supervisor's instructions, failure to attend meetings, failure to review management objectives and persistent absence. She claimed a declaration of unfair termination, one month's salary in lieu of notice, twelve months' salary as compensation, leave pay, costs, interest and a certificate of service. The Respondent asserted the dismissal was fair and lawful, supported by prior warnings, and that she was accorded a hearing. The evidence showed the dispute centred on annual leave: the Claimant, entitled to 24 days annually, repeatedly applied for leave without approval and eventually took unauthorised leave between 23rd and 25th July 2018 despite written warnings, while her colleague John was away. The Court held that although Section 28 of the Employment Act confers a minimum of 21 days' annual leave, the entitlement is not exercised unilaterally and must be mutually timed so as not to disrupt production. On procedure, the disciplinary committee minutes showed the Claimant was heard, advised of her right to accompaniment, and declined to respond except through her legal representative; procedure was fair under Sections 41 and 45, and the reasons valid under Section 43. The Court found the Claimant substantially contributed to her dismissal. The Claim was declined in its entirety, with no order on costs.

Key legal issues

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01

Fairness of procedure under Section 41

Holding

Procedure was fair; the Claimant was heard by a disciplinary committee, given opportunity to make representations and advised of her right to be accompanied

Reasoning

The minutes marked JM8 showed a committee comprising the Divisional General Manager, General Manager-Accounting and Assistant Human Resource Manager heard the Claimant. She was advised of her right to accompaniment but chose to attend alone and refused to respond to the charges except through her legal representative. The Court found the pre-dismissal hearing satisfied Section 41 of the Employment Act.

p. 3
02

Validity of reasons for dismissal under Section 43

Holding

Valid reasons existed - unauthorized absence and insubordination, supported by prior warning letters

Reasoning

Multiple warning letters had issued relating to unauthorized absence and insubordination prior to the disciplinary hearing. The Claimant took unauthorized leave between 23rd and 25th July 2018 after written warning that disciplinary action would follow, and left her accounting docket unattended despite being told to wait until her colleague John returned on 25th July 2018. The Court found the reasons valid under Sections 43 and 45.

p. 2
03

Annual leave entitlement and its exercise

Holding

The entitlement to annual leave is statutory but must be mutually timed; the Claimant's insistence on self-granted leave justified dismissal

Reasoning

Section 28 of the Employment Act confers a minimum 21 days annual leave, and Section 28(5) permits agreement where leave exceeds 21 days. The Court held the Claimant was intransigent in taking leave without approval despite adequate notice and warning. Her claim of persistent denial was contradicted by her own leave form showing 16.5 days owed.

p. 3

Legal principles established

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  • Annual leave entitlement under Section 28 of the Employment Act cannot be exercised unilaterally by an employee; leave must be mutually timed with employer approval so as not to disrupt production
  • An employee aggrieved by repeated non-approval of leave should pursue the employer's grievance policy rather than take unilateral action

Court orders

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  1. 1.The Claim is declined.
  2. 2.No order on the costs.
Jurisdiction invoked
Sections 41, 43, 45, 47, 49 and 50 of 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, "Kithuku v Toyota Tsusho East Africa Limited (Cause 1410 of 2018) [2024] KEELRC 1501 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1501/eng@2024-06-14

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