Wairimu v Bible Society of Kenya

and that it was rescheduled to 21 st December 2021 in a bid to frustrate and cause her mental anguish having regard to the fact that she was expectant. 5. The Claimant asserts that she subsequently requested for the postponement of the session scheduled for 21 st December 2021 because of concerns about her health. She states that she requested that the session be reconvened after she resumed from her maternity leave. 6. The Claimant avers that her supervisor wrote to her on 22 nd December 2021 asking her to hand over to her (the supervisor) pending conclusion of the disciplinary process against her (the Claimant). However, she alleges that she was on leave at the time and did not hand over immediately. She contends that she prepared and handed in the hand over report on 19th January 2022 after she resumed duty on 13th January 2022. 7. The Claimant alleges that when she resumed work on 13 th January 2022, she noticed that the Respondent was intent on frustrating her by, inter alia, refusing to reinstate her duties, allocating her work to other members of staff and failing to respond to her request to reschedule her disciplinary trial to a date after her maternity leave. She alleges that this was not the first time the Respondent was subjecting her to harassment. She enumerates various other incidents which she alleges subjected her to ill treatment at the workplace. 8. The Claimant avers that on 4 th February 2022, the Respondent issued her with a letter of even date through which it terminated her services on grounds of absconding duty. She contends that the decision to terminate her services was actuated by malice and was unlawful. 9. The Claimant denies that she absconded duty as asserted by the Respondent. Further, she contends that the Respondent did not accord her an opportunity to respond to the accusation of absconding duty before it terminated her services. She believes that the Respondent had made up its mind to terminate her contract. As such, she prays for various reliefs as set out in the Statement of Claim. ELRC CAUSE NO. E765 OF 2023 2

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10. The Respondent has opposed the claim. It avers that when the Claimant begun serving in the position of Human Resource Manager, she worked relatively well and exhibited good human resource skills. However, it avers that in mid2019, members of staff began raising concerns about her inter-personal skills. 11. The Respondent avers that the Claimant begun exhibiting signs of indiscipline at the workplace. For instance, it contends that on a number of occasions, she engaged in acts of insubordination and absenteeism and neglected her duties. 12. The Respondent avers that it wrote to the Claimant every time she had a discipline issue seeking her explanation. It further avers that it eventually issued her a warning on 9th September 2020. 13. The Respondent avers that despite the warning, the Claimant’s misconduct did not cease. It asserts that she, for instance, refused to submit her budget to the Head of Finance on time in December 2020. It further avers that she refused to attend a disciplinary meeting for another employee in August 2021 despite being aware that she was the main presenter in the session. 14. The Respondent avers that as a result of the aforesaid misconduct, it issued the Claimant a notice to show cause letter dated 31st August 2021. It contends that although she responded to the letter on 2nd September 2021, it was not satisfied with her response thus making it necessary to conduct a disciplinary hearing for her. 15. The Respondent avers that it scheduled the initial disciplinary hearing on 16th December 2021. However, it avers that the session did not materialize owing to unforeseen circumstances. 16. The Respondent avers that it rescheduled the hearing to 21st December 2021 and notified the Claimant. However, it contends that on that date, the Claimant asked that the session be postponed until after her maternity leave, a ELRC CAUSE NO. E765 OF 2023 3

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request which was going to be detrimental to its (the Respondent’s) operations. 17. The Respondent asserts that the Claimant did not provide medical proof to demonstrate that her pregnancy was at risk to warrant the request to hold the disciplinary session in abeyance until after her maternity leave. It contends that her request was intended to paralyze its operations by making it difficult for it to finalize the disciplinary case against her. 18. The Respondent asserts that the Claimant took sick leave between 21st December 2021 and 28th December 2021 and remained away from work on account of her normal leave until 13th January 2022 when she resumed. However, it asserts that she did not hand over as requested until 19 th January 2022. 19. The Respondent avers that since the Claimant was aware that she was going to be away from 21 st December 2021, it was expected that she was going to hand over to her supervisor in line the prevailing culture in all organizations. Thus, it contends that her failure to do so until 19th January 2022 made nonsense of the best practices in that respect and placed an undue burden on her supervisor. 20. The Respondent asserts that the Claimant subsequently absconded duty from 20th January 2022 and never returned to work. As such, it avers that it terminated her services on 4th February 2022 on account of unexplained absence from duty. 21. The Respondent avers that the Claimant’s conduct amounted to neglect of duty and insubordination. It contends that it is disingenuous for her to now turn around and seek to blame it for her lack of diligence at work. 22. The Respondent avers that it acted fairly and within the law in terminating the Claimant’s services. As such, it prays for the dismissal of her claim against it. Issues for Determination ELRC CAUSE NO. E765 OF 2023 4

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23. After evaluating the pleadings, evidence and submissions on record, the following issues fall for determination:a) Whether the Claimant’s contract of service was improperly terminated. b) Whether the Claimant is entitled to the reliefs which she seeks through the action. Analysis and Determination 24. The law on termination of employment relationships is encapsulated in the Employment Act. For a decision to terminate a contract of service to pass muster, the employer must demonstrate that he had a valid reason to terminate the contract and that he adhered to due process whilst processing the release of the affected employee from service (see Walter Ogal Anuro V Teachers Service Commission [2013] KEELRC 386 (KLR)). 25. The evidence on record demonstrates that the employment relationship between the disputants was not healthy. The Respondent accused the Claimant of a plethora of infractions including: unjustified absenteeism; unjustified failure to attend staff devotional meetings; and neglect of her duties including failure to ensure cleanliness of the workplace, failure to attend to staff disciplinary issues and failure to prepare certain reports. The Respondent viewed the Claimant’s actions as constituting insubordination. 26. During the Claimant’s oral testimony in court, she acknowledged some of these infractions. For instance, she conceded that she did not seek the Respondent’s permission not attend some of the devotional sessions which she alleged were conducted in a cold place. She also conceded that she submitted a report which was due on 10 th July 2020 some three days down the line. She further conceded that she communicated her inability to attend a meeting which had been scheduled at 4.30 PM on 10 th August 2020 about six minutes after the meeting had kicked off (at 4.36 PM). Yet, she knew that she was supposed to have been the main resource person during the session. ELRC CAUSE NO. E765 OF 2023 5

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27. Section 44 of the Employment Act entitles an employer to terminate the services of an employee for, inter alia, absenteeism and negligence of duty. The infractions which the Claimant owned up to comprise acts of gross misconduct under the aforesaid section of the law. Consequently and in the court’s view, the Respondent was entitled to consider terminating her services on account of gross misconduct. 28. The record shows that the Respondent commenced disciplinary action against the Claimant on the basis of, inter alia, the aforesaid infractions. According to the parties, the Claimant was issued with a show cause letter on 31 st August 2021 where after she was invited for a disciplinary hearing on 16th December 2021. However, the hearing did not take off owing to what the Respondent described as unforeseen circumstances. 29. The hearing was rescheduled to 21 st December 2021. According to the evidence on record, this was the only adjournment of the hearing from 16th December 2021 to a subsequent date. As such, the Claimant’s contention that the hearing was adjourned several times thus causing her mental anguish is unfounded. 30. The evidence on record shows that before the hearing could commence on 21st December 2021, the Claimant sent the Respondent an email to request for the adjournment of the case to another date. The reason she gave for the request was that her pregnancy was at an advanced stage and was vulnerable. However, during trial, she stated that the pregnancy did not have any risk save that it was advanced and her due date fell around 15th March 2022. 31. In response to the Claimant’s email, the Respondent wrote to her noting her request based on the sick-off which she had been granted by her doctor. The Respondent informed her that since the sick-off was to end on 28 th December 2021 which coincided with the date of commencement of her normal leave, she should arrange to hand over her docket to her supervisor immediately. She was further informed that this arrangement was to remain in ELRC CAUSE NO. E765 OF 2023 6

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place until it was possible for her to meet the disciplinary team on a date she was to be notified. 32. It would appear that despite the Respondent’s directive, the Claimant did not hand over immediately. Instead, she stayed away for the entire leave period and only handed over on 19th January 2022 after she resumed duty. 33. It would appear that the Claimant’s failure to hand over immediately as had been directed by the Respondent exacerbated the already strained relationship between the parties. According to the Respondent, the Claimant’s conduct flew in the face of the dictates of best practices whenever an employee takes leave. It contends that the impugned conduct was intended to paralyze its operations. 34. The Respondent asserts that immediately after the Claimant handed over on 19th January 2022, she absconded duty and never reported back to work. As a consequence, it asserts that it issued her with the letter dated 4 th February 2022 terminating her contract of service. On the other hand, the Claimant avers that she remained on duty throughout up to and including 4th February 2022 when she was issued with the letter to terminate her services. 35. Despite the Respondent’s aforesaid contention, it did not table evidence to back the claim. As such, there is no evidence upon which the court can make a finding that the Claimant failed to report on duty between 20 th January 2022 and 4th February 2022 when her contract of service was terminated. 36. But even if the Respondent had cogent evidence to demonstrate that the Claimant did not report to work after 19th January 2022, it was incumbent on it (the Respondent) to subject her to a proper disciplinary process before it could terminate her services. As noted earlier, unexplained absence of an employee from the workplace is a ground for summary dismissal under section 44 of the Employment Act. However, before the employer can invoke this as a ground to terminate a contract of service for an employee, he must ELRC CAUSE NO. E765 OF 2023 7

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subject the employee to the disciplinary process which is set out under the aforesaid Act. 37. Ordinarily, the employer is expected to issue the absconding employee a letter of show cause requiring him to explain why his contract should not be terminated for unauthorized and unexplained absence from work. This is necessary in order to establish the reasons for the employee’s absence. 38. If the employee does not respond to the show cause, the employer may proceed to terminate his services without more. However, if he (the employee) responds to the show cause, the employer may choose to either close the case or subject him (the employee) to a disciplinary hearing depending on the import of the response. 39. It is only after complying with the aforesaid procedure that the employer may legitimately terminate an employee’s services. Anything less than this will be tantamount to an unfair termination of the employee’s contract of service no matter how grave the infraction by the employee may be. 40. That an employer must endeavor to subject an employee who is accused of having absconded duty to the prescribed disciplinary process before terminating his contract of service is now a settled matter as evinced in a plethora of court decisions and scholarly publications. As such, this court will not attempt to re-invent the wheel on the subject. A few citations below will justify the position expressed above. 41. In Chemengich v Radar Limited [2025] KEELRC 638 (KLR), the learned Judge expressed himself on the subject as follows:‘’It is trite now that where the employer alleges that an employee absconded duty, hence his dismissal from employment, it behooves that employer so asserting to demonstrate that before it reached the decision to terminate the employee’s employment, it made efforts to reach out to the employee for an explanation regarding his absenteeism, and notifying him of its ELRC CAUSE NO. E765 OF 2023 8

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intention to take adverse action against him on account of the absenteeism and or continued absenteeism.’’ 42. In Felistas Acheha Ikatwa v Charles Peter Otieno [2018] KEELRC 2491 (KLR), the learned Judge commended on the subject as follows:‘’The law is therefore well settled that an employer claiming that an employee has deserted duty must demonstrate efforts made towards getting the employee to resume duty. At the very least, the employer is expected to issue a notice to the deserting employee that termination of employment on the ground of desertion is being considered.’’ 43. George Ogembo in his publication titled ‘’Employment Law Guide to Employers, 2016’’ states on the subject as follows:‘’The fact that the employee has absconded work or has advanced unsatisfactory explanation [for his absence] does not waive his right to be availed the fair process or procedure before termination of his contract of employment. The employer must make several attempts to inform the employee of his intention to terminate his service and invite the employee to a disciplinary hearing.’’ 44. In the case before me, there is no evidence that the Respondent issued the Claimant with a letter of show cause on account of alleged absconding of duty. There is no evidence to demonstrate that the Respondent tried to find out the whereabouts of the Claimant after she allegedly absconded duty in a bid to subject her to disciplinary action on that account before it issued her with the letter to terminate her services. 45. As such, although the Respondent may have had legitimate reasons to consider terminating the Claimant’s service, it failed to adhere to the procedure provided in law in terminating her services. It is so declared. 46. The next issue for determination is whether the Claimant is entitled to the reliefs which she seeks in the ELRC CAUSE NO. E765 OF 2023 9

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action. According to the Statement of Claim, the Claimant seeks various reliefs including the following:a) A declaration that the Respondent unfairly terminated her contract of service. b) Compensation for unfair termination of her contract equivalent to her salary for twelve months. c) Three months’ salary in lieu of notice to terminate her contract. d) Payment in lieu of accrued leave days. e) Payment of outstanding educational fund in the sum of USD 6.100.41. f) Payment of balance of welfare fund contributions in the sum of Ksh. 18,500.00. g) Issuance of Certificate of Service. h) Costs of the suit. i) Interest on the amount to be awarded to her. 47. Having regard to the evidence on record, it is apparent that the Respondent failed to initiate disciplinary action against the Claimant for the alleged absence from duty between 20th January 2022 and 4th February 2022 before it issued her with a letter terminating her contract. It is also apparent that the Respondent did not tender evidence to support the assertion that the Claimant was in fact away from duty on the aforesaid days. As a result, the court finds and declares that the Respondent unfairly and wrongfully terminated the Claimant’s services. 48. Having so found, it follows that the Claimant is entitled to compensation for the unfair termination of her contract of service. In terms of section 49 of the Employment Act, the court is obligated to consider various factors whilst determining the quantum of compensation to award an employee whose contract has been unfairly terminated. These include whether the employee’s conduct contributed to the decision to terminate her services. 49. In the instant case, it is apparent from the evidence on record that the Claimant’s past actions had strained her relationship with the Respondent, negatively impacting the ELRC CAUSE NO. E765 OF 2023 10

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Respondent’s confidence in her. This largely contributed to the events that resulted in the termination of her contract. Taking this into account, the court awards the Claimant compensation for unfair termination of her contract which is equivalent to her gross salary for two months, that is to say, Ksh. 269,006.00. 50. The Claimant has also prayed for salary in lieu of notice to terminate her services. However and as mentioned earlier, some of her earlier infractions amounted to acts of gross misconduct which would have entitled the Respondent to summarily terminate her services without notice if it had followed the proper procedure. Having regard to this reality, the court is disinclined to award her the prayer for salary in lieu of notice to terminate her contract. As such, this prayer is refused. 51. The Claimant has prayed for reimbursement of the education fund totaling USD 6,100.41. During trial, the Respondent’s witness stated that the Respondent was ready to pay out the money on the fund and had in fact included the amount in a cheque which the Claimant declined to collect. The Respondent placed the balance due on the fund at Ksh. 612,031.00. 52. During the trial, the Claimant was shown the Respondent’s computation which showed that the fund was holding Ksh. 612,031.00. She confirmed the fund amount but averred that the money was held in USD. She said the Respondent had converted the figure into Kenyan currency. Having regard to the foregoing, the court enters judgment for the Claimant for the aforesaid amount of Ksh. 612,031.00. 53. The Claimant also claimed for pay in lieu of accrued leave days. When testifying, the Respondent’s witness conceded that she was entitled to 4.5 accrued leave days. It is further noted that the Respondent had in fact offered to pay the Claimant Ksh. 20,175.00 to cover this aspect of the claim if the email from John Njau (one of the Respondent’s officers) dated 21st November 2022 is anything to go by. As ELRC CAUSE NO. E765 OF 2023 11

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such, the court enters judgment for her in the sum of Ksh. 20,175.00 to cover her accrued leave days. 54. The Claimant has also claimed for payment of the balance of her welfare fund contributions in the sum of Ksh. 18,500.00. However, she did not present persuasive evidence to support the claim. As such, it fails for want of proof. 55. The court directs the Respondent to issue the Claimant with a Certificate of Service in terms of section 51 of the Employment Act. 56. The award to the Claimant is subject to the applicable statutory deductions at the time her contract was terminated. 57. The court awards the Claimant interest on the amount awarded at court rates from the date of this decision. 58. The court awards the Claimant costs of the case. Summary of the Findings and Award 59. After evaluating the pleadings, evidence and submissions by the parties against the applicable law, the court makes the following findings and attendant orders:a) The court finds and declares that the Respondent unfairly and wrongfully terminated the Claimant’s services. b) The court awards the Claimant compensation for unfair termination of her contract which is equivalent to her gross salary for two months, that is to say, Ksh. 269,006.00. c) The court declines to award the prayer for salary in lieu of notice to terminate the Claimant’s contract. d) The court enters judgment for the Claimant for Ksh. 612,031.00 being in reimbursement of payments to her education fund. e) The court enters judgment for her in the sum of Ksh. 20,175.00 to cover her accrued leave days. f) The court declines the claim in respect of the welfare fund for want of proof. ELRC CAUSE NO. E765 OF 2023 12

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g) The court directs the Respondent to issue the Claimant with a Certificate of Service in terms of section 51 of the Employment Act. h) The award to the Claimant is subject to the applicable statutory deductions at the time her contract was terminated. i) The court awards the Claimant interest on the amount awarded at court rates from the date of this decision. j) The court awards the Claimant costs of the case. Dated, signed and delivered on the 30th day of July, 2026 B. O. M. MANANI JUDGE In the presence of: …………….for the Claimant …………….for the Respondent ORDER In light of the directions issued on 12 th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court. ELRC CAUSE NO. E765 OF 2023 13

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B. O. M MANANI ELRC CAUSE NO. E765 OF 2023 14

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