What happens when an employee takes study leave abroad and never comes back? Can an employer dismiss them immediately for failing to resume duty, or must formal disciplinary process be followed? And how long should an employer wait before treating staff’s absence as desertion of duty?

A recent labour court case involving a government employee who stayed in the US after completing his studies offers a cautionary lesson on the line between a boss’s right to terminate employment and the duty to follow due process.

The Employment and Labour Relations Court has faulted the Health ministry for dismissing a radiation protection officer, who failed to return to Kenya after moving to the US for further studies.

The court found that although the ministry had a valid reason to terminate Kibet Korir’s employment, the dismissal was procedurally unfair because he was not issued a show cause notice or subjected to a disciplinary hearing.

However, the court dismissed his Sh8.4 million damages claim after finding the suit was time-barred.

Mr Korir joined the ministry in 2004 as a radiation protection officer and was promoted to principal radiation protection officer in 2010, at a salary of Sh114,840.

In 2007, he was enrolled for a PhD in Radiological Science and Protection programme at the University of Massachusetts Lowell. His sponsorship was approved in February 2008 at Sh2.2 million, subject to a three-year bond and remission of 20 percent of his basic salary in a lump sum upon completion of the course, recoverable by instalments.

The ministry later suspended the approval, saying the four-year programme would cost Sh8.5 million and was not required under the scheme of service for radiation protection officers.

Mr Korir appealed and eventually received approval for the course with funding of Sh2.2 million in June 2009. He left Kenya in August 2008 and was expected to complete the programme in August 2012.

He obtained a Master of Science degree in Radiological Science and Protection in February 2012 and a PhD in May 2013.

He did not return to his job after leaving Kenya, prompting the ministry to dismiss him by a letter dated June 24, 2016, effective August 1, 2013, citing desertion of duty.

The dismissal letter said Mr Korir owed the ministry Sh838,350 for salary and allowances he received while away without rendering service. He appealed that decision to the Public Service Commission (PSC) seeking a review, but received no response.

He filed the court case in July 2022, seeking more than Sh8.4 million in allowances, compensation, service pay and other benefits. Mr Korir testified that after leaving in 2008, he only came back for research, not to work.

He confirmed in court that he works as a professor in New Jersey, US. He also testified that the dismissal was overturned by the PSC, which approved negotiations on payment, but the court observed that, though the consent was reached, it was not executed by the Permanent

Secretary, Ministry of Health and Sanitation. Hence, it was ineffectual.

In response, the ministry argued that the claim was time-barred under Section 90 of the Employment Act, which requires job-related claims to be filed in court within three years of the act, neglect or default complained of.

Justice Jacob Gakeri agreed that in Mr Korir’s case the three-year limitation period had expired.

The court found that, having been dismissed in June 2016, Mr Korir was required to file the court dispute within three years, by June 2019, but he filed it in July 2022, more than three years after the statutory deadline.

It said the period runs from termination and is not stopped by an internal appeal, negotiations or other dispute-resolution efforts.

“Time does not stop running merely because parties are engaged in out-of-court negotiations,” the judge said, striking out the suit for want of jurisdiction.

But the court separately considered how Mr Korir would have fared if he had sued within time. He found that the ministry had a valid reason to terminate him because he had not resumed duty after his studies.

“Thus, the respondent had valid and fair reasons to terminate the claimant’s employment,” Justice Gakeri said.

The court found that the ministry had failed to prove that it followed the required disciplinary process. Mr Korir had not been given a hearing or a notice to show cause, although he could have been reached by mail or email.

“The court finds that termination of the claimant’s employment was procedurally flawed and thus unfair within the meaning of section 45 of the Employment Act,” the court stated.

The court rejected Mr Korir’s claims for Sh8.4 million in house, commuter, health-risk, extraneous and government-sponsored trainee allowances. It found that he gave no particulars showing when the payments fell due.

His Sh516,780 service-pay claim was also unproved. The court said Korir was not an NSSF member then and could be entitled to pension for his years of service.

The court said he was entitled to a certificate of service, which the ministry was required to provide within 45 days.

→jwangui@ke.nationmedia.com

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