The Court of Appeal has upheld a KSh 4.7 million compensation award to a former employee who was dismissed through a newspaper advertisement while on sick leave, ruling that the termination was unfair and unlawful, and that it failed to meet basic procedural requirements.
In a judgment delivered on June 12, Justices W. Korir, L.M. Ndolo, and Ahmed Issack dismissed an appeal filed by the employer, affirming an earlier decision of the Employment and Labor Relations Court that awarded compensation to a former employee.
Court records show that the employee joined the company in October 2005 and served as a salesman until May 2010.
Employee Dismissed While Recovering From Illness
The dispute arose after the employee was admitted to Nairobi Hospital in April 2010 and later granted 14 days of sick leave.
While he was recovering, the company accused him of failing to remit customer payments and terminated his employment by publishing a notice in a newspaper.
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The former employee told the court he was never issued with a show-cause letter, invited to a disciplinary hearing or given an opportunity to respond to the allegations.
He also argued that the company failed to pay commissions he had earned over several years and did not issue him with a certificate of service after termination.
The company maintained that the dismissal was justified because Kisigwa failed to return to work after his sick leave ended and allegedly failed to account for money collected from customers.
The company argued that these actions amounted to gross misconduct and justified termination.
Court of Appeal Finds Employer Ignored Due Process
However, the appellate judges found that the company had failed to demonstrate any effort to contact the employee after his sick leave expired or establish that he had deserted duty. The court noted that no show-cause letter was issued and no disciplinary process was conducted before the dismissal.
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“An employer invoking desertion as a defence to a claim of unlawful termination must demonstrate tangible efforts to reach out to the employee,” the judges stated, adding that merely alleging desertion without evidence was insufficient.
The Court of Appeal also rejected the company’s argument that Kisigwa had failed to remit customer funds, finding no evidence that he had been formally confronted with the allegations or given a chance to defend himself.
Judges observed that the accusations only surfaced after he became ill and went on sick leave.
On the issue of unpaid commissions, the Court of Appeal found that Kisigwa had successfully proved his claim by relying on company sales records and contractual provisions that entitled him to commission payments.
The judges further agreed with the trial court that the circumstances of the dismissal were particularly severe.
They noted that Kisigwa was terminated through a newspaper notice while he was unwell, was denied a certificate of service, and did not receive his terminal dues.
The court described the dismissal as having been carried out “without decorum” and in a manner inconsistent with the dignity owed to an employee.
Upholding the award of 12 months’ salary as compensation alongside other employment dues, the Court of Appeal found no reason to interfere with the lower court’s decision and dismissed the appeal with costs.
As a result, the KSh 4.7 million award granted to Kisigwa remains in force.
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