Kenya Union of Commercial , Food and Allied Workers v Amritlal Shah Wholesalers Limited (Cause E016 of 2022) [2024] KEELRC 2602 (KLR)
The bottom line
#A Kenyan court ruled that firing a sick worker without a hearing was unfair, awarding him Kshs 148,350.50 despite the employer claiming he absconded.
What this practically means
#Executive summary
#Key legal issues
#Whether the Grievant was unlawfully terminated or absconded duty
The Respondent failed to prove the alleged abscondment; the Grievant had notified his supervisor of illness and produced a treatment chit, and no valid reason for termination was proved
The Grievant fell ill on 12th February 2019, sought treatment and informed his supervisor. He produced a stamped treatment chit. The Respondent produced no evidence of attempts to contact him, no show cause letter and no attendance records to prove desertion. Under section 43, the employer must prove the reason for termination; failing that, the termination is unfair. Absence without more does not justify summary dismissal where lawful cause for the absence is shown.
Whether due process was followed before termination
No disciplinary hearing or opportunity to be heard was accorded the Grievant, rendering the termination procedurally unfair contrary to section 41
Section 41 requires an employer, before terminating on grounds of misconduct, to explain the reasons to the employee in a language he understands and allow an employee or shop floor union representative to be present. No evidence of any disciplinary hearing was placed before the court. The Court of Appeal in Janet Nyandiko has held compliance with sections 41 and 45 to be mandatory, and failure renders termination unfair. The termination here was therefore unprocedural and unfair.
What remedies are available to the Grievant
Notice pay, leave pay, days worked, underpayment, six months' compensation under section 49 and a Certificate of Service awarded; overtime and severance pay declined
Having found the termination lacked valid reason and due process, the court awarded one month's salary in lieu of notice, accumulated leave pay and pro-rata leave in the absence of the employer's section 74 records, pay for 18 days worked in February 2019, and underpayment computed against the Regulation of Wages (General) (Amendment) Order 2018 minimum wage. Six months' salary compensation was awarded under section 49(4) considering four years of service and the circumstances of termination.
Legal principles established
#- The employer bears the burden of proving the reason for termination; failure renders the termination unfair under section 45 of the Employment Act
- Absence from work per se is not a valid ground for dismissal unless absence is without leave or other lawful cause
- An employer alleging desertion must show efforts to contact the employee and must afford an opportunity to explain the absence
- An employer must comply with the mandatory procedural requirements of sections 41 and 45 of the Employment Act before terminating employment
Court orders
#- 1.Judgment entered in favour of the Claimant against the Respondent in the total sum of Kshs 148,350.50
- 2.The Respondent to issue a Certificate of Service to the Grievant within thirty days of the judgment
- 3.The Respondent to bear the Claimant's costs of the suit, assessed at Kshs 50,000
- 4.Interest to accrue at court rates from the date of judgment
- Jurisdiction invoked
- First-instance claim under the Employment Act, 2007 and Labour Relations Act following a Certificate of Unresolved Dispute issued after conciliation before the Minister for Labour
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial , Food and Allied Workers v Amritlal Shah Wholesalers Limited (Cause E016 of 2022) [2024] KEELRC 2602 (KLR)", Case Analysis (2024). Not stated in the judgment as extracted (Memorandum of Claim dated 29th June 2022, filed 15th July 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2602/eng@2024-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.