In a landmark ruling, the Employment and Labour Relations Court has determined that an employer cannot simply plead abandonment of duty as grounds for terminating an employee’s contract.
Justice Monica Mbaru ruled that employers must demonstrate they have taken reasonable steps to locate the employee and ask them to return to work.
“The employer must, where possible, demonstrate that they addressed the matter of the employee’s unexplained absenteeism through available internal channels,” Justice Mbaru stated.
This decision followed an appeal by Central Furniture Shop Ltd, which contested a ruling that its employee, Mr Alfani Mohamed, had been unfairly dismissed due to a lack of proper procedure.
The court ruled that desertion of duty, a unilateral act of abandoning the job, cannot automatically terminate the employment contract. Employers must take active steps to formally end the contract, including issuing a termination letter.
“Absence from work is gross misconduct, and the employer must notify the employee,” the judge commented.
In its appeal, Central Furniture Shop Ltd argued that Mr Mohamed’s absence from the master roll during his time away was sufficient grounds for dismissal. However, the court disagreed, stating that the company had failed to follow proper procedures.
If an employee remains absent, the employer is required to issue a formal termination letter. If the employee cannot be located, the notice must be submitted to the Labour Officer under the Employment Act.
Mr Mohamed, a heavy commercial driver, testified that he had been verbally dismissed without receiving a termination letter or payment for his terminal dues. The court’s decision underscores the importance of employers adhering to due process before dismissing an employee.
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