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Court says desertion of duty not sufficient reason to end job contract
A court has ruled that before firing an employee for abandonment of duty, an employer must demonstrate that reasonable steps were taken to find out the employee's whereabouts.
The Employment and Labour Relations Court has ruled that it is not sufficient for an employer to plead abandonment of duty by an employee as evidence of termination of a contract.
It further ruled that the employer must demonstrate that reasonable steps were taken to find out the employee's whereabouts and require him to resume duty to no avail.
Justice Monica Mbaru further said that an employer does not sack an employee in the event of allegedly abandoning duty and that the employer has the legal burden of addressing the lapse.
“The employer must, where possible, demonstrate that they addressed the matter of the employee’s unexplained absenteeism through available internal channels,” ruled Justice Mbaru.
She ruled in a case in which Central Furniture Shop Ltd appealed against a decision by a magistrate's court that its employee, Mr Alfani Mohamed, had been unfairly dismissed for lack of due process.
The judge also said that desertion of duty being a unilateral act of abandonment of the contract cannot operate to bring a contract of service to a close until the employer acts on it.
The court found that Central Furniture Shop Ltd's argument that Mr Mohamed was not on the master roll for the period of his absence was insufficient.
“Absence from work is gross misconduct and the employer must notify the employee,” said Justice Mbaru.
She added that where an employee remains absent, the employer has a legal duty to issue a letter terminating employment and where he/she cannot be traced through a known address, recourse is to submit the notice of terminating employment to the Labour Officer under the Employment Act.
“The magistrate assessed the evidence well and the findings cannot be attributed to fault,” ruled Justice Mbaru.
The judge reviewed the magistrate’s court judgment by removing only the house allowance that had been awarded to the respondent.
In its appeal, Central Furniture Shop Ltd had sought to have the entire judgment set aside and Mr Mohamed’s claim dismissed.
It argued that the magistrate misdirected himself on the facts and erred in assessing the documented facts of the case and reached a wrong decision that was oppressive and contrary to the employment law.
The company also argued that the magistrate failed to apply his mind to the clear facts pleaded and placed before him when he introduced his own theory on how the respondent absconded duty.
On his part, Mr Mohamed told the court that he was employed as a heavy commercial driver and was verbally dismissed from his employment.
Mr Mohamed said that he was sent out of the company premises without any termination letter or payment of his terminal due and that no notice was issued.
He further said that the trial court assessed the facts and arrived at a correct judgment.
