Simon Wachie Wakwabubi v Erdemann Company (K) Limited [2019] KEELRC 26 (KLR)
The bottom line
#A Kenyan court ruled that firing a sick worker who couldn't notify his employer was unfair, awarding him Kshs.248,150.
What this practically means
#Executive summary
#Key legal issues
#Fairness of the summary dismissal during sickness
The termination was unfair for want of due process under section 41 and want of a genuine reason under section 43 of the Employment Act, 2007
The claimant fell sick on 10.09.2017, had not been given the respondent's telephone number, and notified the foreman the following day on resuming duty. He was therefore not absent without reasonable cause. The dismissal was abrupt, without notice or hearing, and without a genuine reason, contrary to sections 41 and 43 of the Employment Act, 2007.
Entitlement to pay in lieu of notice, service pay and leave
Claimant awarded one month's pay in lieu of notice under section 35, service pay of Kshs.17,850.00 under section 35, and Kshs.29,750.00 leave pay under section 28
The court considered the 1 year 5 months of service and awarded 6 months' gross salaries as compensation, plus contractual notice pay, service pay in lieu of NSSF membership absent alternative pension arrangements, and untaken annual leave as prayed for under the respective statutory provisions.
House allowance
Kshs.53,550.00 awarded as reasonable provision for housing since the agreed pay could not be inclusive of housing and the claimant was not housed
Under section 31 of the Employment Act the court found the monthly pay of Kshs.21,000.00 could not include a reasonable provision for housing, and the respondent neither housed the claimant nor paid house allowance, so the claim as prayed was awarded.
Overtime claim
Prayer failed because the claimant did not establish agreed or statutory working hours or the overtime pay rate
The claimant testified he worked 2 extra hours daily, but produced no evidence of the agreed or statutory working hours or overtime rate. The claim was not anchored on rest days so section 27 of the Act could not be invoked. The prayer therefore failed.
Legal principles established
#- An employee on paid sick leave who cannot notify the employer of illness as soon as reasonably practicable, through no fault of his own, is not culpable of absence without reasonable cause and summary dismissal on that account is unjustified and unfair for want of due process and genuine reason.
Court orders
#- 1.Declaration that the termination of the claimant's employment by the respondent was unfair
- 2.Respondent to pay the claimant Kshs.248,150.00 by 01.02.2020, failing interest at Court rates from the date of judgment till full payment
- 3.Respondent to pay the claimant's costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simon Wachie Wakwabubi v Erdemann Company (K) Limited [2019] KEELRC 26 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/26/eng@2019-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.