Lupat Cleaning Services Limited v Cheserem (Employment and Labour Relations Appeal E249 of 2023) [2025] KEELRC 646 (KLR)

The Court re-evaluated the evidence and found from the labour office document (EC3) that the claimant left work on 27th September 2019 with no intention to return, hence absconding. However, RW1 admitted under cross-examination that no letter was written to the claimant to find out where she was despite having her contacts. There was no evidence of compliance with section 41 on notification before termination on account of absconding, so the termination was procedurally unfair. The trial court's finding on unfairness was upheld.

Section 49(1) empowers the court to award up to twelve months' gross salary, but the exercise of that discretion must be judicial and based on relevant factors. The claimant absconded duty effective 27th September 2019, and RW1's evidence that she failed to resume duty was unshaken. The Court held it cannot reward misconduct and that the trial court never justified the maximum award, so the compensation was set aside while notice pay was upheld for the section 41 procedural failure.

Section 48 of the Labour Institutions Act provides that minimum rates of remuneration established in a wages order constitute terms of employment that may not be varied by agreement. The respondent produced a contract of Kshs. 6,000 consistent with her position; the appellant did not dispute the tabulations under the various wages orders pleaded. Freedom of contract is therefore not absolute in employment contracts, and the awards of back pay for underpayment were upheld.

The respondent produced leave forms showing she took 21 days' leave in 2018, contradicting her claim that she never went on leave. The only leave remaining due was for 2019, which was upheld at Kshs. 9,455.30. The larger award of Kshs. 63,031.50 for 105 untaken leave days over five years was therefore not sustained.