Court upholds magistrate's ruling in Covid-19 dismissal dispute

The Employment and Labour Relations Court has dismissed an appeal by a former sales executive who claimed she was unfairly terminated after testing positive for Covid-19.

Mary Ndindi Muithya had appealed against a magistrate's decision that found she was not unlawfully dismissed by Meditest Diagnostic Services Limited.

The appellant contended that she had been terminated on January 2, 2022 while on sick leave, before she could tender her resignation on January 16, 2022.

Muithya tested positive for Covid-19 at the respondent's own facility on December 23, 2021 and went into 14 days of isolation as required by Ministry of Health protocols.

She claimed she only discovered her employment had been terminated when she received a summary dismissal letter via email on January 17, 2022.

The letter was dated January 2, 2022.

Her counsel stated that between December 24 and January 1, were public holidays, which meant she was only away for four working days.

The appellant thus sought various reliefs, including one month's salary in lieu of notice, damages for unfair termination and severance pay.

The respondent argued that the appellant had absconded duties from December 23, 2021, without applying for sick leave or informing them of her condition and that her subsequent resignation confirmed she had no intention of returning.

The company's human resource witness confirmed under cross-examination that an employee must miss work for over seven days before an employer can issue a notice to show cause.

In his judgment, Judge Nelson Abuodha found that the trial magistrate had correctly determined that Muithya had absconded duties.

"The court notes that the appellant intended never to resume duties when she resigned on January 16, 2022," the judge stated on Monday.

"The respondent illustrated that it made efforts to reach the appellant through the phone and it was switched off. That it did not have the appellant's mail ID."

The court emphasised the employee's responsibility to communicate illness to their employer.

"In the circumstances where an employee is unwell for whatever reason, within the employment and labour relations regime, the basic requirement on the part of the employee under the Employment Act is that when one is sick or unwell, this is to be brought to the attention of the employer within a reasonable time," the judge said.

The responsibility of notifying the employer could therefore not be placed on the medical practitioner at the respondent's facility.

"The practitioner was not a party to their employment relationship," the judgment reads.

"In this case as observed by the trial court the appellant did not notify the respondent of her sickness even if she was treated at the respondent's facility the procedure required of a sick employee ought to be followed. Why did she not apply for sick leave in writing? Why did she not reasonably inform the respondent of her sickness?"

Regarding reliefs, the trial court had only awarded a certificate of service.

Upholding that decision, the appellate court ruled that having established there was no unlawful dismissal, the appellant was not entitled to the additional reliefs sought.

"In the upshot the court finds and holds that the appellant's appeal is without merit and the same is hereby dismissed with costs."