The Court of Appeal has upheld an award of Sh765,000 to former employee Peter Njoroge Chege after finding that Koppert Biological Systems Limited unlawfully terminated his employment without giving him an opportunity to defend himself.
A three-judge bench comprising Justices William Korir, L. M. Ndolo and Ahmed Issack Hassan dismissed the company’s appeal against a judgment of the Employment and Labour Relations Court (ELRC), which had ruled that Mr Chege was unfairly dismissed in violation of the Employment Act.
Mr Chege was employed by Koppert Biological Systems Limited on June 5, 2014, as a Technical Sales Representative and worked for the company for slightly over a year before his employment ended on July 6, 2015.
The circumstances of his departure later became the subject of a legal dispute.
According to Mr Chege, on the day his employment ended, the company’s General Manager, accompanied by other members of management, instructed him to surrender company property in his possession and leave the workplace immediately.
He told the court that he was dismissed without notice, without being informed of any accusations against him and without being subjected to any disciplinary process.
Koppert denied unlawfully terminating him, arguing instead that Mr Chege had deserted duty on July 6, 2015. The company maintained that desertion amounted to gross misconduct and justified summary dismissal.
The Court of Appeal rejected that argument, holding that desertion cannot simply be alleged without evidence demonstrating that an employee intended not to return to work.
The judges explained that desertion is distinct from ordinary absence from work and requires an employer to demonstrate efforts made to contact the employee and establish their intentions before taking disciplinary action.
In Mr Chege’s case, the court found that Koppert had not produced evidence of any attempt to reach him or issue a notice requiring him to explain his alleged absence.
The judges further noted that the company’s own conduct contradicted its claim that Mr Chege had abandoned duty.
The court observed that in response to a demand letter from Mr Chege’s lawyers, the company stated that he had been terminated on July 6, 2015, citing alleged gross misconduct as the reason. It also published a notice in the Daily Nation newspaper indicating that he had ceased being its employee from the same date.
According to the court, those actions demonstrated that the company had already decided to terminate the employment relationship rather than treat the matter as one of desertion.
The judges held that if the company believed Mr Chege had committed gross misconduct, he ought to have been informed of the allegations and given an opportunity to respond before disciplinary action was taken.
The court relied on Section 41 of the Employment Act, which requires employers to follow a fair procedure before terminating an employee.
The appellate court also rejected the company’s argument that the award granted by the ELRC was excessive.
The Sh765,000 award comprised one month’s salary in lieu of notice, salary for six days worked in July 2015, payment for accrued leave and compensation equivalent to eight months’ salary for unfair termination.
Although the court noted that trial courts should explain the factors considered when assessing compensation, it found no basis to interfere with the ELRC’s decision.
“Desertion cannot simply be alleged without evidence showing that an employee intended not to return to work,” the judges held.
The court added that employers must ensure employees are informed of allegations against them and accorded a fair hearing before termination.
