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ELRCPartially AllowedNot stated in the judgment as extracted (Memorandum of Claim dated 29th June 2022, filed 15th July 2022)· [2024] KEELRC 2602 (KLR)

Kenya Union of Commercial , Food and Allied Workers v Amritlal Shah Wholesalers Limited (Cause E016 of 2022) [2024] KEELRC 2602 (KLR)

Employment and Labour Relations Court
24 October 2024
MOMaureen Onyango
2,917 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant trade union sued on behalf of Grievant Hosea Kiplagat, a general worker employed by the Respondent from 2015 at a gross monthly salary of Kshs 13,715, alleging that after he fell ill on 12th February 2019 and notified his supervisor, his employment was verbally terminated effective 18th February 2019 without a show cause letter, notice or hearing. The Respondent contended the Grievant absconded duty and was duly paid his dues. The dispute went through conciliation before the Minister for Labour, resulting in a Certificate of Unresolved Dispute. The court framed two issues: whether the Grievant was unlawfully terminated or absconded duty, and the remedies available. Applying sections 41, 43, 44, 45 and 49 of the Employment Act, the court held that the employer bore the burden of proving the reason for termination and of demonstrating efforts to contact the allegedly absconding employee. The Grievant's treatment chit corroborated his illness; the Respondent produced no attendance records, show cause letter or evidence of a disciplinary hearing. The termination was therefore without valid reason and procedurally unfair. On remedies, the court awarded one month's salary in lieu of notice, leave dues of Kshs 30,401.50, Kshs 8,229 for 18 days worked in February 2019, Kshs 7,206 in underpayment against the 2018 minimum wage order, and six months' salary (Kshs 86,613.60) as compensation under section 49, but declined overtime for lack of proof and severance pay as there was no redundancy. Judgment was entered for Kshs 148,350.50, a Certificate of Service was ordered within thirty days, costs assessed at Kshs 50,000 were awarded to the Claimant, with interest at court rates from the date of judgment.

Key legal issues

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01

Whether the Grievant was unlawfully terminated or absconded duty

Holding

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

Reasoning

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.

p. 5
02

Whether due process was followed before termination

Holding

No disciplinary hearing or opportunity to be heard was accorded the Grievant, rendering the termination procedurally unfair contrary to section 41

Reasoning

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.

p. 6
03

What remedies are available to the Grievant

Holding

Notice pay, leave pay, days worked, underpayment, six months' compensation under section 49 and a Certificate of Service awarded; overtime and severance pay declined

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.Judgment entered in favour of the Claimant against the Respondent in the total sum of Kshs 148,350.50
  2. 2.The Respondent to issue a Certificate of Service to the Grievant within thirty days of the judgment
  3. 3.The Respondent to bear the Claimant's costs of the suit, assessed at Kshs 50,000
  4. 4.Interest to accrue at court rates from the date of judgment

Authorities

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Legislation

  • Employment Actsection 43
  • Employment Actsection 41
  • Employment Actsection 44(4)(a)
  • Employment Actsection 45
  • Employment Actsection 49
  • Employment Actsection 51(1)
  • Employment Actsection 74
  • Labour Relations Act
  • Regulation of Wages (General) (Amendment) Order2018

Cases cited (6)

  • Florence Audiah Adhiambo v Kenjap Motors Limited
    [2020] eKLR
  • Felistas Acheha Ikatwa v Charles Peter Otieno
    [2018] eKLR
  • Joseph Nzioka v Smart Coatings Limited
    [2017] eKLR
  • Ann Njoroge v Topez Petroleum Ltd
    (2013) eKLR
  • Samuel Kipkemboi Too v University of Eastern Africa, Baraton
    ELRC Cause No E023 of 2021
  • Janet Nyandiko v Kenya Commercial Bank Limited
    [2017] eKLR
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

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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, "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.