The Court of Appeal has clarified the legal procedures employers must observe before dismissing employees who are on authorised sick leave. This ruling follows an appeal where a worker was awarded Ksh4.7 million after being unfairly terminated while recovering from illness.
The employee had been hospitalised and on official sick leave when accused of failing to account for company funds. Despite these allegations, the employer terminated his contract without following the mandated disciplinary process.
Key Rulings from the Court
- Employers cannot consider absence on authorised sick leave as desertion of duty.
- A show-cause letter detailing the allegations must be issued to the employee before any disciplinary action.
- Employees must be given a fair opportunity to respond to accusations prior to any termination decision.
- Employers must demonstrate genuine efforts to communicate with the employee, especially when contemplating dismissal on grounds of desertion.
- A proper disciplinary hearing should be conducted, allowing the employee to defend themselves.
The three-judge bench, comprising Ahmed Issack, Linnet Mumo Ndolo, and Weldon Kipyegon Korir, emphasized that simply invoking 'desertion' without evidence or efforts to notify the employee is insufficient.
In this case, the employer failed to make meaningful contact with the worker during his recovery and instead published a termination notice in a newspaper. The court held this approach as both procedurally and substantively unfair.
This landmark decision reinforces that employees on legitimate sick leave are protected under Kenyan labour laws and cannot be dismissed without due process. The ruling is expected to guide employers in handling disciplinary matters fairly and within legal frameworks.
