Brief Facts
The claimant (Banking,
Insurance & Finance Union (BIFU)) filed a claim for unlawful and
unfair dismissal of Silas Koome Mwirebua (the grievant) against the
respondent (Barclays Bank of Kenya Ltd). The respondent filed the
defence and Counter-claim denying the entire claim and lodged a
counter-claim for the payment of Kshs.938,802.20 from a personal loan
and Barclay's card debt of Kshs.29,766.88. The respondent submitted that
the grievant was a habitual absentee, he was given verbal reprimands
but on January 19, 2011 he was asked to show cause why disciplinary
action could not be taken against him for absconding duty following a
repeated absence without any communication to the supervisor. The
grievant responded to this notice with an apology and promise of not
repeating the same mistake. However the same mistakes were repeated
which forced the respondent to recommend the grievant for referral to a
wellness advisor for appropriate action. The grievant failed to complete
the wellness program and hence the respondent was forced to commence
disciplinary process which the grievant failed to attend and thus was
dismissed leading to the cause for wrongful dismissal.
Issues
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Whether in a case of sickness, an affected employee had a duty that was mandatory to bring to the attention of the employer as soon as was reasonably practicable of any absence due to sickness or illness.
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Whether the failure to bring to the attention of the employer of one’s sickness and illness gave such an employer a good defence in case of Summary dismissal
Employment Law-termination of employment-termination by summary dismissal- whether
the respondents action in dismissing the grievant summarily on
absconding of duty due to uninformed sickness amounted to unfair
termination of employment contract- whether the failure to bring
to the attention of the employer of one’s sickness and illness gave such
an employer a good defence in case of Summary dismissal-Employment Act
of 2007 Section10, 30, 34, 41 and 44.
Relevant Sections:
section 10 (3) (a) (ii)
a. any terms and conditions relating to any of the following
i. …
ii. incapacity to work due to sickness or injury, including any provision for sick pay;
30. (1) After two
consecutive months of service with his employer, an employee shall be
entitled to sick leave of not less than seven days with full pay and
thereafter to sick leave of seven days with half pay, in each period of
twelve consecutive months of service, subject to production by the
employee of a certificate of incapacity to work signed by a duly
qualified medical practitioner or a person acting on the practitioner’s
behalf in charge of a dispensary or medical aid centre.
(2) For an employee to be
entitled to sick leave with full pay under subsection (1), the employee
shall notify or cause to be notified as soon as is reasonably
practicable his employer of his absence and the reasons for it.
(3) For the purposes of
sub-section (1) and (2) “full pay” includes wages at the basic rate
excluding deductions from the wages allowable under section 19.
[emphasis added].
34. (1) Subject to
subsection (2), an employer shall ensure the provision sufficient and of
proper medicine for his employees during illness and if possible,
medical attendance during serious illness.
(2) An employer shall take
all reasonable steps to ensure that he is notified of the illness of an
employee as soon as reasonably practicable after the first occurrence of
the illness.
(3) It shall be a defence to
a prosecution for an offence under subsection (1) if the employer shows
that he did not know that the employee was ill and that he took all
reasonable steps to ensure that the illness was brought to his notice or
that it would have been unreasonable, in all the circumstances of the
case, to have required him to know that the employee was ill.
Held
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The Employment Act addressed the rights of parties to an employment relationship quite extensively. Looking at all aspects of matters that were likely to happen at the work place, the Act had gone way out to incorporate as much as looking at how an employee when unwell or sick ought to have been treated. That went to the extent of making such provisions in the employment contract as part of the terms and conditions of work. In the contract of employment, part of the terms to be included was a policy framework as an attachment to or as a work place policy that outlined matters outlined under section 10 of the Employment Act. Sickness was a serious occurrence that could happen suddenly to any employee while at work or outside the workplace that was likely to affect the work and duties of such an employee. When such sickness happened, section 30 of the Act applied.
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The employment relationship was based on agreement between parties so as to enhance productivity and therefore parties undertook consultations, notification and hearing of each other side of view even in serious cases where there might be a case of misconduct. Hearing and giving the other party a chance to be heard before sanctions or drastic action was undertaken was the cornerstone of an employment relationship. Therefore even in a case of sickness, an affected employee had a duty that was mandatory to bring to the attention of the employer as soon as was reasonably practicable of any absence due to sickness or illness.
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Where the absence was caused by sickness or illness such an employee was required to produce a certificate as to the medical condition from a qualified medical practitioner. That was a fair and basic requirement of the employee as indeed where one was sick or ill and unable to attend work, then as a matter of good faith, due diligence and good practice, such an employee had to attend to the subject issue causing sickness or illness and have a certification by a medical practitioner. As apart from such sick off there were other compassionate leave and annual leave days that an employee could take to commiserate if there was persistence in sickness or illness that was not addressed by a medical practitioner.
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It was appreciated that sickness or illness could happen in the most unforeseen circumstances. In such cases, section 34 of the Act applied. Therefore where an employee was sick, the employer was to provide sufficient and proper medicine and take steps to ensure the notification of the illness of an employee as soon as practically possible. Failure to bring to the attention of the employer of one’s sickness and illness gave such an employer a good defence that the sickness and illness had not been brought to their attention in good time and especially where the employee contributes to such illness or sickness such as overindulgence in alcohol intake or self-injury.
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The grievant was not sick or ill in the conventional sense. His case was, based on what he considered having sleepless nights he had a condition that made him unwell and made him unable to attend to work. He was accommodated without any question by his line manager who tried all manner of interventions. No medical evidence was required to prove that he was indeed sick but the line manager decided to refer him to the wellness center.
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Section 30 of the Employment Act provided, interalia, that an employer was exempt from paying an employee on sick leave if the employee had been absent from work for more than 7 consecutive days on full pay an on a further 7 days on half pay within 12 months and failed to produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury, when requested by the employer to produce such a certificate.
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The aspect of being ill was not a wrong in itself. What was wrong was not bringing the same to the attention of the employer and further being away from work without authorization or sharing information as to where the employee was. That amounted to absconding duty and a serious labor sanction followed as that was tantamount to negation of a contract of employment. An employee was taken to have abandoned his contract of service without notice to the employer. Failing to contact the respondent constituted unexplained absence for the period the grievant was away and he could not compute his sick off days and consolidate them and state he had 51 days that he was entitled to out of the total due of 120 days as those sick off days were to be authorized and or approved by an officer of the respondent. If the grievant needed to utilize his sick off days up to a maximum of 51 days, he had the choice of making an application in compliance with the respondent’s operational requirements and failure to do so and continued absence established the fact of desertion. Absence from work without a justifiable reason or permission and or authorization and notice to the employer was a subject for summary dismissal under section 44 of the Employment Act.
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There was no material evidence by the claimant that the grievant as a responsible employee even where he had a ‘condition’ that made him not able to attend work, caused the employer to know of that ‘condition’ that was later diagnosed with acute depression. At the point where the grievant was referred to the wellness center for counseling sessions he absconded as he felt that was not useful to him. That far, the respondent had complied with section 30 and 34 of the Act by offering the basic requirements to their employee the grievant.
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Where more medical assistance was required for the grievant, the respondent was ready and willing to undertake that cost as per the law and thus referred him to a doctor and the admission to Chiromo Lane Center. Despite these efforts, the grievant still failed to attend to his disciplinary hearing when his case came up to give an explanation as to what condition he suffered from. There was no explanation as to why the grievant or his representatives were not at the disciplinary hearing. The respondent could therefore not be said they failed to comply with the provisions of section 41 of the Act.
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The summary dismissal of the grievant on July 12, 2012 was valid to the extent that upon compliance with section 30 and 34 of the Act, the grievant failed to attend at his disciplinary hearing with no justifiable cause. The respondent could therefore not be faulted for the sanction taken as they had no knowledge or reason to know that the grievant had absconded his wellness session and opted to attend to a doctor of his own choice.
Claim dismissed each party to bear their own costs.
Counter-claim against the grievant to the sum of Kshs. 968,569.08 allowed.
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