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ELRCDismissedCause No E652 of 2022· [2024] KEELRC 1509 (KLR)

Kamande v Kakuzi PLC (Cause E652 of 2022) [2024] KEELRC 1509 (KLR)

Employment and Labour Relations Court
14 June 2024
1,984 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 dismissed a teacher's unfair termination claim entirely, ruling her unauthorised absence was gross misconduct and her union must pay the employer's costs.

What this practically means

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Executive summary

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The Claimant, an ECDE Teacher employed by the Respondent at Mitini Nursery School in Thika from 15th May 2013, was summarily dismissed on 15th June 2022 for absenting herself from work for three days (26th-28th May 2022) during the school half-term break, despite an agreed arrangement to avail herself for holiday duties at the Respondent's stores. She claimed unfair termination, annual leave pay, gratuity, notice pay, compensation, underpayment against the Wage Order, and June 2022 salary. The Respondent maintained she absented herself without permission, that the Minimum Wage Orders did not apply to ECDE Teachers covered by the Kpawu CBA, and that procedure was fair. The court found the dismissal justified: the absence was unauthorized, without lawful cause, and formed part of a pattern of unauthorized absences previously met with written warnings, constituting gross misconduct under clause 8.2[a] of the CBA and Sections 43, 44para 4[a] and 45 of the Employment Act. Procedurally, the Claimant was suspended on full pay, investigated, heard at a disciplinary hearing with a shop steward, dismissed, and heard on appeal with her Chief Shop Steward - the court found the procedure faultless. All remedies were declined: gratuity was excluded for gross misconduct; leave traveling allowance payments evidenced that leave was taken; free housing negated any house allowance; salary was collectively agreed with Kpawu; and salary was paid to the last day worked. The claim was dismissed in its entirety, with costs awarded to the Respondent, payable by the Claimant's current union, Kunopett, which drew and prosecuted the pleadings.

Key legal issues

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01

Validity of the ground for summary dismissal

Holding

Dismissal was justified - unauthorized absence during half-term constituted gross misconduct under the CBA and Sections 43, 44para 4[a] and 45 of the Employment Act

Reasoning

The Claimant was absent for three consecutive days without permission or lawful cause, despite an agreed arrangement to avail herself for holiday work and a history of unauthorized absences with written warnings. Clause 8.2[a] of the CBA defined such absence as gross misconduct. The court held the employer had clear justification under the Employment Act and the CBA.

p. 3
02

Procedural fairness of the dismissal

Holding

The dismissal procedure complied with Sections 41 and 45 of the Employment Act

Reasoning

The Claimant was suspended with full pay, investigated, invited to a disciplinary hearing, heard in the company of a shop steward, dismissed with reasons, advised of the right of appeal, and granted a personal appeal hearing with the Chief Shop Steward. No fresh evidence was presented on appeal. The court found the procedure faultless.

p. 4
03

Entitlement to gratuity and other contractual/statutory benefits

Holding

Gratuity, annual leave pay, house allowance, notice pay, compensation and underpayment claims all failed

Reasoning

Gratuity was excluded where dismissal was for gross misconduct under clause 10 of the CBA. Leave traveling allowance payments proved leave was taken. Free housing negated house allowance. Salary was collectively agreed via the CBA with Kpawu. Salary was paid to the last day worked. The Kunoppet conciliation point was irrelevant as the Respondent had no Recognition Agreement with that union.

p. 4

Legal principles established

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  • An employer lawfully summarily dismisses an employee who absents herself without permission or lawful cause, where the contract/CBA classifies unauthorized absence as gross misconduct, especially where the employee has a history of unauthorized absences.
  • Suspension with pay, an investigation, a disciplinary hearing attended with a shop steward, and a personal appeal hearing satisfy Sections 41 and 45 of the Employment Act.
  • Payment of leave traveling allowance, payable only prior to commencing annual leave, rebuts a claim that annual leave was never taken.
  • An employee covered by a CBA negotiated by her trade union cannot fault terms collectively agreed by that union; a different union unconnected to the CBA cannot legitimately challenge its implementation.

Court orders

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  1. 1.The Claim is declined.
  2. 2.Costs to the Respondent, to be paid by the Claimant's current Trade Union, Kenya Union of Pre-Primary Education Teachers [Kunopett].

Authorities

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Legislation

  • Employment ActSections 41, 43, 44[4][a], 45
  • Minimum Wage [General] Wage Order, 2018
  • Electronic Case Management Practice Directions, 2020Practice Direction 6[2]
Jurisdiction invoked
Employment and Labour Relations Court original jurisdiction under the Employment Act (Sections 41, 43, 44[4][a] and 45) and applicable CBA

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, "Kamande v Kakuzi PLC (Cause E652 of 2022) [2024] KEELRC 1509 (KLR)", Case Analysis (2024). Cause No E652 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1509/eng@2024-06-14

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