Disabled man must be compensated for wrongful dismissal by insurance company
Insurance company that fired its physically disabled employee will now have to pay 4.8 million shillings after being found guilty of discrimination by the Supreme Court
Supreme Court Justices Philomena Mwilu, Mohamed Ibrahim, Dr Smokin Wanjala, Njoki Ndungu and Isaac Lenaola have said that Simon Gitau Gichuru was unfairly dismissed by his employer Package Insurance Brokers Limited. Kenya’s highest court ruled that Gitau’s dismissal for illness constituted indirect discrimination.
The dispute began in the Labor Court which, on October 19, 2017, awarded Gitau 5,000,000 Sh as damages for discrimination, 2,384,100 as compensation for 12 months’ wages for unlawful dismissal and unfair and another Sh198675 as one month’s salary instead. notice. The total price was Sh7 781 450.
However, Package Insurance Brokers went to the Court of Appeal to challenge a judgment of the Employment and Labor Relations Tribunal. Package appealed on the grounds that Judge J Ndolo had committed an error of law in awarding Gitau Sh5 million in damages for discrimination, arguing that the court had failed to demonstrate how Gitau had been discriminated against, justifying the huge amount.
Gitau was the company’s operations manager having been employed on January 1, 2010. Three years later, he was diagnosed with a tumor, forcing him to seek treatment in India. A successful spinal cord surgery was performed before he returned to duty on February 10, 2014.
However, the employee was unable to perform his duties without assistance, a situation which prompted his employer to ask him to take sick leave. Package Insurance Brokers has also requested to receive a medical evaluation from its doctor.
When the response to his condition delayed, the employer threatened to suspend Gitau, claiming he was in the dark about his condition during the seven months he had been on sick leave.
“Notwithstanding the above circumstances, this business needs productivity. We therefore inform you that we have no choice but to suspend your employment and all the benefits accrued 30 days from the date of this letter ”, wrote SN Mwangi, director of the company.
Five days later, Gitau’s doctor, Dr Kiboi Julius, released the medical report indicating that his patient, still on physiotherapy, was gradually improving and would return to service in two months. But the employer disregarded the medical advice and suspended Gitau, who was asked to cede all company property in his possession and provide a loan repayment plan of Sh 1,095,411, which ‘he got to acquire his two cars.
Gitau filed a notice of intention to sue on the grounds that the employer’s action amounted to constructive dismissal. A month later, on August 1, 2014, Gitau was dismissed without notice, allegedly for serious misconduct.
The company claimed to have discovered that Gitau had collected money from the company on behalf of the employer, which he did not report on. The employer also claimed that Gitau used false documents to get a job.