Aminga v Radar Limited (Cause 994 of 2018) [2023] KEELRC 2501 (KLR)
The bottom line
#A Kenyan court ruled that firing a sick worker without a hearing is unfair, awarding him notice pay, leave pay and six months' salary.
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 reason for the Claimant's dismissal was fair and justified
- 2.Whether the Claimant's dismissal was procedural and fair hence unfair and unlawful dismissal
- 3.Whether the Claimant is entitled to the reliefs sought
Key legal issues
#Whether the reason for dismissal was fair and justified
The dismissal was not justified; the Respondent knew the Claimant was sick and could not prove absconding as gross misconduct
The Respondent alleged the Claimant absconded duty for about a month. However, the Claimant was referred to Zambezi Hospital, the Respondent's facility, and his medical bills were paid by the Respondent, facts never refuted. Warning letters alleging negligence were never produced despite ten years of service with upward salary review. Absenteeism under section 44(4)(g) of the Employment Act was therefore not proved, so there was no valid and fair reason for dismissal.
Whether the termination was procedurally fair
The dismissal was procedurally flawed and unfair under section 45 of the Employment Act
Section 41 of the Employment Act requires an employer to explain the reasons for termination and hear the employee's representations, even for summary dismissal under section 44. The Respondent's witness acknowledged no disciplinary hearing was convened and no show cause letter was issued because they could not reach the Claimant. The court rejected the Respondent's view that section 41 did not apply to summary dismissal, holding the process mandatory.
Entitlement to reliefs
One month's notice pay, leave pay for 9 years, six months' salary as compensation, certificate of service and costs awarded; other prayers declined
Notice pay was allowed as the reason for dismissal was substantially unjustified. Leave pay was granted because leave forms produced bore no signature from the Claimant. Considering his ten years of service as a security guard with no special skills, six months' salary was reasonable compensation. A certificate of service under section 51 was to be reissued. Other prayers lacked evidential support.
Legal principles established
#- The employer must prove both substantive justification and procedural fairness before summary dismissal; absence from work known to be on sick leave is not proved gross misconduct and dismissal without notification and hearing is unfair.
Court orders
#- 1.One month's salary in lieu of notice of Kshs 16,669
- 2.Payment in lieu of leave of Kshs 150,021
- 3.Six months' salary as compensation for unfair termination of Kshs 100,014
- 4.Costs of the suit to the Claimant
- 5.The Respondent shall issue the Claimant with a certificate of service
- 6.Items (a), (b) and (c) shall where applicable be subject to taxes and statutory deductions
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- First-instance claim under the Employment Act, 2007
Relief refused
#Claim of Kshs 13,134,472.00 as loss and damage and other prayers in the claim
No justification or evidence was provided to support them
Damages for loss and/or payment of salaries and allowances from 4th December 2017 until final determination
Not among the reliefs awarded; only notice, leave and six months' compensation were granted
Costs
Costs of the suit awarded to the Claimant
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.
From the foregoing the Court finds and holds that the termination of the claimant's employment was not justified since there was no valid and fair reason for dismissal.
Concerning procedural fairness the Court holds the view that the Claimant's dismissal/termination was procedurally flawed hence unfair under section 45 of the Employment Act.
The Prayer for unpaid leave for 9 years not taken is granted to the Claimant. Even though the Respondent attached some leave application forms none was signed by the Claimant which was requirement that an employee applies then the Respondent approves.
c) Six months' salary as compensation for unfair termination 100,014
e) The Respondent shall issue the claimant with certificate of service
f) Items (a), (b) and (c ) shall where applicable be subject to taxes and statutory deductions
Issues in the judgment
#Paragraph 21 states the Respondent filed submissions on 16th September 2023, a date after the submissions hearing date of 23rd May 2023 is consistent but the year given (2023) appears after the judgment date context; possibly a typographical error for 2022
The period of service is inconsistently stated: the claim pleads employment from 2007 (10 years) while the court refers to approximately 9 years, and the leave claim is described as for 9 years
Robinson v Harman is cited with the year 1948 although the reported citation (1848) 1 Exch 850 suggests a typographical error in the judgment
The Respondent's claim that the Claimant was involved in a disciplinary process and received warning letters is contradicted by its own witness's testimony
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aminga v Radar Limited (Cause 994 of 2018) [2023] KEELRC 2501 (KLR)", Case Analysis (2023). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2501/eng@2023-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.