Ibrahim Kones v Car and General (Trading) Limited [2018] KEELRC 65 (KLR)
The bottom line
#A Kenyan court confirmed an employer can dismiss an absconding employee without a hearing, but loyal service still earned him notice pay, leave pay and gratuity.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant was locked out of employment or he absconded work
- 2.Whether the Claimant is entitled to the reliefs set out in the statement of claim
Key legal issues
#Whether the Claimant was locked out or absconded work
The court found the Claimant absconded work due to dissatisfaction over an unpaid expected salary raise, and that the Respondent effectively rebutted the lock-out claim.
The Claimant could not prove on a balance of probabilities why the Branch Manager would lock out a good employee. He produced no power of attorney, no authorised leave forms, and no documentation of the alleged promotion. His grievance was expectation of a salary raise never granted. The Respondent's witnesses consistently testified he left on 15th January 2011 without permission and did not return despite a notice to show cause.
Validity of the summary dismissal and absence of a disciplinary hearing
The summary dismissal was for a valid reason and the Respondent could not be faulted for not convening a disciplinary hearing since the Claimant absconded and did not answer the notice to show cause; however the dismissal was commuted to a normal termination.
The Claimant did not avail himself of the opportunity to respond to the notice to show cause. The court nonetheless took into account RW 1's testimony that the Claimant had served loyally and diligently as a good employee, making it just to treat the exit as a normal termination attracting one month's pay in lieu of notice.
Entitlement to terminal benefits and reliefs
The Claimant was awarded pay in lieu of 49 untaken leave days (Kshs.47,363.40), one month's notice pay (Kshs.29,000), 15 days' salary for January 2011 (Kshs.14,500), and service gratuity per the applicable CBA, but lost the damages, underpayment and severance claims.
RW 2 could not rebut the untaken leave claim. Service gratuity was unrebutted and both witnesses confirmed coverage by the CBA, but neither party supplied the full CBA text, so the court directed the Claimant to compute the gratuity on his last salary of Kshs.29,000 for confirmation at a mention date.
Legal principles established
#- A summary dismissal for absconding duty that is otherwise lawful and fair may be commuted to a normal termination where the employee had served loyally and diligently, warranting notice pay.
- An employer asserting summary dismissal for absenteeism need not convene a disciplinary hearing where the employee absconded and did not collect or answer a notice to show cause.
- An employee claiming promotion and higher pay bears the burden of proving it; without documentation such a claim fails.
Court orders
#- 1.The summary dismissal is commuted to normal termination
- 2.Kshs.29,000 in lieu of one month notice
- 3.Kshs.47,363.40 in lieu of 49 days leave
- 4.Kshs.14,500 in lieu of 15 days salary for January, 2011
- 5.Service gratuity for the 5 1/2 years served calculated on the last salary earned by the Claimant at the rate applicable in the Collective Bargaining Agreement in respect of unionisable employees; Claimant to compute the sum payable within 14 days, file and serve the Respondent; Respondent to respond within 14 days; matter to be mentioned in court after 30 days for the court to confirm gratuity payable
- 6.Award payable with interest at court rates from date of filing suit till payment in full
- 7.Respondent to pay costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act; the court exercised first-instance jurisdiction over an unfair/summary dismissal claim filed by statement of claim on 24th June, 2011
Relief refused
#General damages for unlawful and unfair dismissal
The summary dismissal was lawful and fair in the circumstances; the Claimant absconded work and was dismissed for a valid reason.
Claim for underpayments based on alleged promotion to Service Executive/management
The Claimant failed to prove the alleged promotion and entitlement to a salary raise from 2009.
Severance pay for 5 1/2 years
The Claimant absconded work and was not retrenched.
Costs
Respondent to pay costs of the suit
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, the Claimant was summarily dismissed from Respondent's employment for a valid reason.
The court cannot fault the Respondent for failure to convene a disciplinary hearing in the circumstances of the case.
In the court's view this is a proper case to commute the summary dismissal to a normal termination of employment.
The Claimant was unable to prove that he had been promoted and was entitled to a salary raise from 2009. This claim fails in its entirety and is dismissed.
(g) Respondent to pay costs of the suit.
Issues in the judgment
#The relief claim is misnumbered in the amended statement of claim (two items numbered 'v.' and two numbered 'vi.'), and the award of Kshs.47,363.40 is said to be in lieu of 49 leave days while the text states it is 'in lieu of 40 leave days not taken'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ibrahim Kones v Car and General (Trading) Limited [2018] KEELRC 65 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/65/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.