Section 44 of the Employment Act of Kenya gives guidance on summary dismissal. The law states that “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.”
Section 44(4) then lists the instances of gross misconduct that warrant the summary dismissal of an employee. Under Section 44(4)(a), one of those grounds is the failure of an employee to report to their workstation. The Act defines it as, “without leave or other lawful cause, an employee absents himself from the place appointed for the performance of his work”. So, is the Employer required to follow any process when dealing with an employee who has failed to report to work?
The case of Boniface Francis Mwangi v B.O.M. Iyego Secondary School [2019] eKLR highlights an instance of desertion of duty. The facts are that on 9th September, 2014, a theft occurred at the school where the employee (claimant) was a night guard. He was arrested on 10th September 2014 and charged with the offence of breaking into and stealing, at the Kangema Law Courts. The matter was fully heard and he was acquitted on 9th June 2016 under Section 215 of the Criminal Procedure Code. He claimed that since the arrest, the Employer never paid him any salary, which implied that there was constructive dismissal.
The principal was the school’s main witness. She told the court that she was in school on the night of 19th September 2014 when the burglary took place and school equipment stolen. She thereafter reported the incident to Kangema Police Station, and the Police investigated and arrested the guard. She testified that she had never seen the Claimant since he was acquitted and said that the Claimant did not return to work. She also stated that she had never heard from the Claimant whether verbally or in writing. Therefore, she maintained that the Claimant absconded duty since he never returned to work after being released. On cross-examination, she confirmed that she never gave him a notice to show cause, nor did she give him a letter terminating his services. She testified that the Claimant used to go on leave while in employment. She also admitted that the Claimant used to work on Sundays and public holidays.
The Court, in assessing whether the employee had been constructively dismissed, found that upon being granted bail on 15th September 2014, the employee reported to his place of work, but he was, however, told to wait for the conclusion of the case by the principal. Upon being acquitted, he returned to work and was told to wait for a letter, which had not been sent at the time of filing the matter in court. In the Court’s view, “It is good practice for an employer to take the initiative of contacting the employee where an employee absconds work and find out the reason for the failure to present themselves for work. In this case it was even more compelling as the Respondent was aware of the trial and the Claimant made effort to contact the Respondent only to be informed that he was to abide communication from the Respondent.”
The Court observed that in Kenya, the law as held in various decisions is that when an employee absconds duty and fails to turn up to work, the employer has the responsibility to reasonably demonstrate that efforts were made to contact such an employee without success. Any dismissal of an employee on account of absconding must be preceded by evidence showing that a reasonable attempt was made to contact the employer concerned and that a show cause letter was issued to such employee calling upon such employee to show cause why his services should not be terminated on account of absconding duties.
The Court therefore held that “From the evidence adduced in court, it is clear that the Respondent never made any attempt to contact the Claimant. It thus fell short of the standard duty of care owed in terms of the decisions by my learned colleagues. The Claimant’s dismissal was thus dismissal without notice and the same unilaterally done. The Respondent may have felt uncomfortable retaining the Claimant in its employment after being suspected of involvement in theft, his acquittal notwithstanding. The employer is however required to abide by the procedural requirements of the law set out under Section 40 and 41(2) of the Act by ensuring the employee is given notice and allowed a fair and reasonable chance to present a defence. The Claimant herein was not issued with any notice and neither was he taken through any disciplinary hearing. The termination of the Claimant was unfair within the meaning of Section 45 of the Employment Act.”
So, how should employers deal with absentee employees to avoid such expensive outcomes?
The first step is to ensure that once an employee fails to report to work, an effort is made to contact them. The employee file should contain bio-data that includes the telephone number and email of the employee. Further, the next of kin details should be properly captured as they would be the employee’s appointed contact person if one cannot get hold of the employee.
The next step is to issue the employee with a show-cause letter to mark the start of the disciplinary process. After that, a disciplinary hearing is conducted, and the employer must ensure that they abide by the requirements for disciplinary hearings under the law. Minutes should be prepared, as they are a key part of the evidence in employment cases.
The final step involves issuing the termination letter. The employee is terminated for absconding duty, an act of gross misconduct. Since it is summary dismissal, no notice is issued, nor is payment made in lieu of notice. It is important to ensure that any other terminal benefits that the employee had earned, such as leave days earned but not taken, are issued upon termination.
We advise clients on employment and labour issues. To consult further on this and other employment matters, send us an email on legal@jnadvocates.com
The contents of this newsletter do not constitute legal advice and are provided for general information purposes only.
James Njeri and Company Advocates
Landmark Plaza, 13th Floor,
Argwings Kodhek Rd. Nairobi, Kenya
Tel: 0719494083
Email: legal@jnadvocates.com
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