Hamisi v Modern Coast Express Limited (Cause E071 of 2023) [2024] KEELRC 1557 (KLR)

The respondent complied with Sections 41 and 43 up to issuing the notice to show cause and arranging the first hearing on 28 July 2020. However, the hearing was rescheduled and the claimant was never notified of the new date of 7 August 2020, so he appeared without notice and without opportunity to bring an employee of his choice. The mandatory protections of Section 41 were therefore breached, rendering the summary dismissal unjustified despite valid grounds of misconduct.

Although termination was unfair for want of due process, the claimant had a poor work record, was absent without permission, refused to accept the notice to show cause and refused to respond to questions at the hearing. Section 45(5) requires conduct and culpability to be considered. Awarding compensation would reward gross misconduct, so nil compensation suffices, though notice pay remains due for the procedural lapse.

The claimant's payment statement showed remittances of statutory dues to NSSF and NHIF, and the respondent filed these records. Under sections 35(5) and (6) of the Employment Act, an employee registered with NSSF is excluded from claiming service pay. The claim for service pay for 9 years therefore fails.

Off days under Section 27 and leave days under Section 28 of the Act are distinct. Section 28(4) requires leave to be taken within 18 months unless carried over with the employer's consent. Without records of carry-over, only 33 days within 18 months are payable, computed on the claimant's basic salary of Ksh. 73,552.