[Being appeal from the judgment of Hon. J Ong’ondo delivered on 5 March 2024 in Malindi MCELRC No.E028 of 2021]
The appeal arises from the judgment delivered on 5 March 2024 in Malindi MCELRC E028 of 2024. The appellant is seeking the judgment and orders thereof to be varied and the claim allowed with costs.
The background to the suit was a claim filed by the appellant on the basis that on 1st April 2014, he was employed by the respondent as an enforcement officer in various stations in Kilifi County. He was issued with a letter of appointment with terms and conditions of employment for the first year of employment. He was paid a wage of Ksh.18, 000 per month but on 2 November 2019 he reported wot work sickly and during the day he got worse where he informed his supervisor Mr. Kenneth Karisa, the Chief Enforcement Officer who allowed him to leave for the hospital.
The appellant claimed that on 4 November 2019, his supervisor called him to enquire about his health status but he was still on medication. On 5 November 2019, the appellant resumed work but was summoned by the operations manager, Alex Mwitia accompanied by Kenneth Karisa who alleged that he was absent from work without permission/approval. His supervisor denied any knowledge of the appellant being sick. The appellant was directed to write an apology that he had abandoned work for 4 days which he refused to do since the allegations were not correct and the respondent proceeded to issue a letter of summary dismissal. This was unfair and without due process and claimed the following dues;
- 12 months compensation Ksh.216,000;
- Notice pay Ksh.18,000;
- Unremitted NSSF dues for 20 months Ksh.4,000;
- Unremitted NHIF dues for 20 months Ksh.12,000;
- Gratuity Ksh.22,500;
- Severance pay Ksh.51,923;
- accrued leave for 68 months Ksh.117,692.70;
- overtime Ksh.1,977,265.92;
- Rest days for 68 months Ksh.376,616,64;
- Public holidays for 5 years Ksh.76,154.10;
- Certificate of service;
- Costs of the suit.
In response, the respondent admitted that the appellant was employed on a contractual basis and parties agreed that employment could be terminated at any time without notice if the appellant was found guilty of gross misconduct. Employment was terminated lawfully when the appellant committed acts of gross misconduct by being rude, abusive and arrogant to the manager contrary to section 44(4)(d) and (e ) of the Employment Act. He did not report to work for 4 days without permission leading to loss of revenue and great loss to the respondent. The summary dismissal was justified and lawful. The claims made were not justified.
In the judgment of the trial court held that the appellant was absent from work without producing a sick sheet and the respondent followed the due process in the summary dismissal and hence dismissed the claim and each party to pay its costs.
Aggrieved by the judgment, the appellant filed this appeal on 11 grounds that the trial court erred in law and fact by failing to find that the respondent had not discharged its burden of proof to justify the reasons for termination of employment. There was no notice to show cause that was issued before the summary dismissal and the provisions of Section 41 of the Employment Act were not followed. The failure to assess the claims and find that there were no remittances of NSSF and NHIF was without evidence and contrary to Section 47(5) of the Employment Act.
The appellant also claims that the trial court erred in failing to address the fact the employment relationship should be governed under a written contract of employment as required under Sections 73 and 74 of the Employment Act and hence failed to address the provisions of Section 45 of the Act. This resulted in errors and findings and the appeal should be allowed.
Parties attended and agreed to address the appeal by way of written submissions.
The appellant submitted that Section 41 of the Employment Act provides that before termination of employment, the employee should be accorded an opportunity for a hearing. In a cause of summary dismissal. Section 44 of the Act allows the employer to issue notice to the employee to allow him to enjoy rights under Section 41(2) of the Act. In this case, the respondent failed to adhere to the mandatory provisions of Section 41 of the Act as held in Dungani v West Kenya Sugar Company Limited. No show cause notice was issued and there is no evidence that the appellant was allowed a hearing before the summary dismissal as held in Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Ltd [2013] eKLR.
The contract of employment dated 31 April 2014 allowed for termination of employment upon notice which the respondent failed to address. Clause 7 of the contract stipulated that absence from work was not allowed save due to sickness or annual leave. The appellant was unwell and he reported to the supervisor. The trial court failed to address this evidence and hence arrived at a wrong decision.
The appellant submitted that under Article 47 of the Constitution, the trial court should have considered the substantive reasons advanced for dismissal which were not justified. Under Article 50 of the Constitution, there was no fair trial and hence the judgment should be varied and the claims made allowed with costs.
The respondent submitted that under Section 44 of the Employment Act, termination of employment by summary dismissal is allowed for gross misconduct. Being absent from work without permission is classified as gross misconduct and justifies summary dismissal. During the trial, the Appellant admitted that he had a written contract and provided that absence from duty without permission was punishable by termination of employment. In the absence of any Medical certificate, the alleged sickness was without evidence. In the case of BIFU v Barclays Bank of Kenya Limited [2014] EKLR the court held that sickness is not wrong but the employee must bring such matter to the attention of the employer and produce a medical certificate upon return to work.
In this case, when the appellant returned to work on 5 November 2019, he was directed to write down what had happened to him over the 4 days he was absent but he declined. He became rude and abusive. The procedures of Section 41 of the Employment Act were followed when the appellant was asked to defend himself but opted to walk away.
The respondent discharged its duty of proof as held in the case of George Onyango Akuti v G4S Security Services Kenya LTD (2013) EKLR where the court held that the employer, apart from the required provisions of section 47(5) of the Employment Act to justify the grounds of termination, section 43 demand that the employer prove the reasons for the termination, while section 45(2) (a) and (b) require an employer to prove that the reasons for termination were valid and fair. In this case, there were justified grounds leading to summary dismissal and the claims made are not justified and the appeal should be dismissed with costs.
Determination
This is a first appeal. The court is allowed to review the record and re-assess and make its conclusions but take into account that the trial court had the chance to hear the witnesses testify in court.
The core issue in the appeal is the summary dismissal of the appellant by the respondent on 5 November 2019.
The appellant’s case is that he fell sick on 2 November 2019 and informed his immediate supervisor. He returned to work on 5 November 2019 and was directed to tender an apology for being absent without permission for 4 days which he refused to do because according to him, he had been sick.
The respondent on its part asserts that the appellant was absent from work without permission and when he returned was asked to give an explanation which he refused to do and instead became abusive, rude and walked away.
Absence from work without permission is addressed under Section 44 of the Employment Act as an act of gross misconduct. The employer is allowed to summon the employee on short notice and direct him to explain his conduct and if not satisfied, to sanction through summary dismissal.
Section 44(1) requires that;
(1) Summary dismissal shall take place when an employer terminates the employment of an employee without notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term.
The safeguard to the employee is under Section 41(2) of the Employment Act. The employee must be allowed to attend and make his representations as held in the case of Lawi Wekesa Wasike v Mattan Contractors Limited [2016] KEELRC 1737 (KLR) and the case of Ibrahim Ali Kongani v Mayfair Holdings Limited [2021] KEELRC 1336 (KLR).
In this case, the appellant's case that he was sick and hence not able to attend work for 4 days is left bare. Upon return to work on 5 November 2019, he did not produce any medical certificate as required under Section 34 of the Employment Act.
In the case of Thomas Osieko Amulele v Catholic Diocese of Nakuru [2018] KEELRC 134 (KLR) the court held that an employee who is sick is allowed to be absent from work but has to produce a medical certificate from a recognized medical practitioner. In the case of n the case of Stephen Kariuki and another versus Michael Njoroge and Sandstone Logistic Limited/Cylinder Works Limited, Cause No.888 of 2010 the court held that;
[where an employee is sick and away from work] Upon resumption of duty, an employee who has been sick must submit a medical certificate from an authorised medical practitioner. The essence of section 30 and 34 of the Act is essentially to give an explanation for absence from work by providing the requisite documents as otherwise, absence from work without a just cause is a subject for summary dismissal under section 44(4) of the Employment Act, 2007.
In this case, without the appellant producing any evidence on the reasons alleged to cause him to be absent from work, there existed justified grounds for summary dismissal.
In the process applied, the appellant in his evidence and submissions, admitted that he was directed to write down an apology. The respondent asserted that he was asked to give an explanation for his absence. The appellant was the employee who had committed gross misconduct. Whatever explanation he was required to give, he should have seized the moment to address it. Failing to give an explanation and give a defence that he was being forced to write an apology does not exonerate him from the act of gross misconduct. The motions of Section 41(2) of the Employment Act were adhered to by the respondent.
Employment terminated for a good cause that was justified there being acts of gross misconduct due to absence from work for 4 days without permission.
However, the trial court should have assessed the claims made on the merits required under Section 18(4) of the Employment Act,
(4) Where an employee is summarily dismissed for a lawful cause, the employee shall, on dismissal be paid all money, allowances and benefits due to him up to the date of his dismissal.
The appellant was seeking payments of compensation and notice pay which are not due in a case of summary dismissal.
On the claim for NSSF and NHIF, these are not due to the employee but to the statutory body. The appellant in evidence admitted that he was registered to NSSF and NHIF. The respondent filed the payment statement which demonstrates that there was payment to NSSF and NHIF.
The claim for gratuity must be anchored under the employment contract or agreement. The appellant does not explain how this accrued.
On the claim for severance pay, this was a case of summary dismissal and not one of redundancy where such payment arose.
On the claim for leave pay for 68 months, section 28 of the Employment Act secures the right to annual leave. The employer must ensure the employee has taken annual leave each year. Where the employee accumulates leave days, at the end of employment, the claims can only go back to 18 months under the provisions of Section 28(4) of the Employment Act.
In this case, the respondent as the employer did not file any work records on how the appellant was allocated annual leave. This is a requirement under Sections 10(6) and (7) of the Employment Act. Without any records, the appellant is entitled to 33 leave days’ pay based on the basic pay of Ksh.18, 000 per month. The total due is Ksh.19, 800.
The claim for overtime and rest days for 68 months, under paragraph (20) of the Memorandum of Claim, the appellant’s case was that;
The claimant avers that he attended work for 24 hours (6.00 am to 6.00am) for four (4) to five (5) days in a week and was not paid for overtime
From this paragraph, two things emerge. Under the contract of employment, the appellant was allowed to work for 8 hours during the day or night shifts. The need for work 24 hours a day is not addressed in evidence or written submissions. It is not humanly possible to work for 4 to 5 days for 24 hours. This is a gross exaggeration of facts.
Also, where work was for 4 to 5 days a week, Section 27 of the Employment Act only allowed one rest day each week. On the given facts, to claim for a rest day is not justified. The claim for overtime is equally lost.
On the claim for working during public holidays, such days are not general but gazette by the Minister. The employee must particularize the days worked. A general claim cannot suffice.
A certificate of service is due at the end of employment in terms of Section 51 of the Employment Act. In this case, such should issue.
The appeal only succeed on the limb of leave pay at ksh.19, 800. The judgment of the trial court in Malindi MCELRC E028 of 2021 is reviewed to this extent only. Each party to pay its costs.
Delivered in open court at Mombasa on this 31st day of October 2024.
M. MBARŨ
JUDGE