Sacked for absconding duty without your employer making any effort to reach out and understand your situation? Well, a judge has now provided a level of protection.
A Mombasa court has ruled that for termination of employment on account of desertion or absconding duty to be deemed lawful, an employer must provide evidence proving that an effort was made to contact the truant employee before making the decision to sack them.
While relying on previous superior court rulings, Mombasa Principal Magistrate Gathogo Sogomo ruled that desertion of duty is a grave offence that requires proof of employer-initiated attempts to reach out to the employee.
"In the instant matter, as much as the respondents pleaded and provided evidence that desertion triggered the claimant’s self-termination, no correspondences, call logs, or message screenshots were presented in court to prove their assertion that they attempted to contact him via his cellphone or other means," said the Magistrate in a ruling dated February 7.
Under Section 43 of the Employment Act, in a claim arising from the termination of a contract, the employer is required to prove the reasons for the termination. If the employer fails to do so, the termination is deemed unfair under Section 45.
"It is not open for an employer to assume self-termination in a case of desertion by the employee," said the Magistrate.
The ruling was made in a case where an employee, described in court as a casual labourer, sued his employer for unlawful termination.
Mr Sogomo declared the dismissal of Joseph Kahindi by his employer, Amina Mohamed, unlawful and unfair, as there was no evidence that the employer had reached out to him when he failed to show up for work.
The Magistrate ruled that it was not open to Mr Kahindi’s employer to assume self-termination when no effort was made to contact him or notify him that dismissal was under consideration for desertion of duties.
"In view of the foregoing, this court finds that the termination of employment by the respondents against the claimant was unlawful and unfair," said the Magistrate.
With no evidence of communication from the employer, the court found the dismissal unlawful and awarded Mr Kahindi Sh358,000 in compensation, including a month’s salary in lieu of notice, unpaid leave, maximum compensation for unfair termination, and service pay.
Mr Kahindi, who had been employed as a caregiver and janitor of tenements since 2002, was summarily dismissed in July 2021. He then moved to the Mombasa court seeking justice, including a declaration that his termination was unlawful and unfair and compensation for illegal dismissal.
According to his court documents, he alleged that his dismissal was based on his failure to provide a national ID for salary processing.
"I served the respondent diligently and without reprimand until July 7, 2021, when she terminated my employment for the nebulous reason that I had failed to surrender my national ID card for salary processing," he told the court.
However, Mr Kahindi argued that for the past 19 years, the respondent had paid his salary in cash without requiring an ID.
He further explained that he had left the document at his rural home for land registration purposes.
He lamented that his continued employment had become untenable when the respondent’s family introduced miscreants masquerading as police officers, who began threatening him with undisclosed dire consequences—an issue he had reported to the local police station.
"In addition to being denied leave or compensation in lieu thereof for the entire duration of service, the respondent failed to subject me to due process. I was never paid my terminal dues," he said.
On the other hand, Ms Mohamed argued that Mr Kahindi had deserted duty after receiving his salary for June 2021, along with wages for seven days in July 2021.
"The claimant was employed on a casual basis and worked for three to four hours a day. He was paid monthly as a domestic worker, along with an additional monthly payment as a casual labourer," said Ms Mohamed.
She admitted that Mr Kahindi had refused to provide his ID for salary processing and added that he had also made a false report against her, causing her embarrassment.
According to Ms Mohamed, Mr Kahindi was paid his monthly salary for June 2021, including an advance deduction, and wages for the seven days worked in July 2021.
"He deserted duty altogether. I urged Mr Kahindi to resume work in vain," she said, refuting claims of denying him leave, stating that he had been granted leave whenever due.
However, in his ruling, Mr Sogomo disagreed with Ms Mohamed on several issues, including Mr Kahindi’s employment status.
For instance, the Magistrate noted that there was no cogent evidence in pay schedules or other documents proving that Mr Kahindi worked on a piece-rate basis.
The Magistrate further observed that even if the definition of a piece-rate worker under Section 2 of the Factories Act were stretched to its most elastic limits, Mr Kahindi’s employment would not fall within this category, given the consistent and frequent period of service.
"For the same reason, the court finds that the claimant (Kahindi) cannot have been a casual labourer as suggested by the respondent (Ms Mohamed). He would be construed to have served under a contract of monthly wages," said the Magistrate.
Mr Sogomo further noted that the respondent’s admission that the claimant had taken leave contradicted their claim that he was a casual or piece-rate employee.
"This facility (leave) would not be available to such a temporary worker, who would normally be dismissed at the end of the day or at the completion of the work piece," he said.
On the issue of service pay, the court noted that the employer provided no records proving that Kahindi was registered with the National Social Security Fund (NSSF) or any other social security entity under Section 19 of the NSSF Act and Section 35(5) of the Employment Act.
The Magistrate argued that courts have previously ruled against employers who claim that a contract does not provide for service pay or that the law has not yet fixed a formula for computing service pay.
"The claimant’s employment lasted over 19 years, and the court shall award him maximum damages for unlawful termination," said the Magistrate.
The Magistrate relied on previous court rulings to support his view that Kahindi’s termination was unfair.
In one such case, where Ronald Nyambu sued Tornado Carriers Ltd, the court observed that desertion of duty is a grave administrative offense that, if proved, would render an employee liable to summary dismissal. However, it is not enough for an employer to merely state that an employee has deserted duty.
"The law requires an employer alleging desertion to show efforts made to reach out to the employee and put them on notice that termination on this ground is under consideration," the court stated.
In another case, the court found that RAA Ltd did not show any attempt to contact Mr William Gituma, a claimant in that case, before terminating his employment.
