Desertion constitutes employee-initiated termination: The case of Mumali v Blink Studio Limited [2025] KEELRC 2112 (KLR)

1. Facts of the Case

The Claimant, Mr. Mumali, was employed by the Respondent, Blink Studio Limited, under a contract of employment governed by the Employment Act, 2007.

At some point during the subsistence of his employment, the Claimant stopped reporting to work and failed to communicate with the Respondent regarding his absence. The Respondent made attempts to reach out to him, but the Claimant did not provide any explanation or indication of his intention to resume duty.

Subsequently, the Respondent issued a one-month notice of termination, citing the Claimant’s absence without leave and lack of communication, which the Respondent considered to be desertion and therefore a breach of contract.

The Claimant later filed a claim at the Employment and Labour Relations Court, alleging that the Respondent had unfairly terminated his employment without following due process as required under Sections 41, 43, and 45 of the Employment Act, 2007.

In defence, the Respondent maintained that the Claimant’s own conduct amounted to repudiation of the contract and that the notice of termination merely formalised acceptance of that repudiation.

2. Issues for Determination

1. Whether the Claimant’s absence from work without communication constituted desertion.
2. Whether the Respondent’s act of issuing a notice of termination amounted to unfair termination under the Employment Act, 2007.
3. Whether the Respondent complied with procedural fairness in the manner of separation.

3. Arguments by the Parties

(a) Claimant’s Position:

• The Claimant argued that the Respondent’s decision to terminate his employment was unfair and unlawful, as it did not comply with the procedural safeguards under the Employment Act.
• He maintained that he was not subjected to a disciplinary hearing as required under Section 41, nor was he given an opportunity to explain his absence.
• He therefore sought compensation for unfair termination, including notice pay and other terminal dues.

(b) Respondent’s Position:

• The Respondent contended that the Claimant had absconded duty and demonstrated no intention to resume work.
• The Respondent further argued that the Claimant’s unexplained absence amounted to desertion, which in law constitutes repudiation of the employment contract by the employee.
• The issuance of a one-month termination notice was thus not a dismissal, but an acceptance of the employee’s repudiatory conduct.

4. Decision / Holding

The Court found in favour of the Respondent and held as follows:

1. Desertion of Duty:
   The Court determined that the Claimant’s conduct — being absent from work for an extended period without communication or intention to return — constituted desertion.
2. Repudiation of Contract:
   The Claimant’s desertion amounted to a repudiation of the employment contract. This meant that by his conduct, the Claimant had effectively brought the contract to an end.
3. Acceptance of Repudiation:
   The Respondent’s issuance of a notice of termination was deemed to be an acceptance of that repudiation, rather than an act of unfair dismissal.
4. Procedural Fairness:
   The Court held that in cases of desertion, the employer’s obligation to conduct a disciplinary hearing is limited, since the employee has already abandoned the employment relationship. Therefore, the procedure adopted by the Respondent was fair and reasonable under the circumstances.

Accordingly, the claim for unfair termination was dismissed.

5. Ratio Decidendi (Legal Reasoning)

• Desertion is defined as an employee’s unexplained absence from duty with no intention to return.
• Such conduct amounts to repudiation of the employment contract, giving the employer the right to treat the contract as terminated.
• The employer’s act of formalising this through a termination notice is not unfair dismissal, but acceptance of repudiation.
• The procedural fairness requirement under Section 41 of the Employment Act is not strictly applicable where the employee has voluntarily deserted employment.

6. Legal Significance / Precedent Value

This decision reinforces the principle that:

• Desertion constitutes employee-initiated termination, and not unfair dismissal by the employer.
• Employers who act reasonably — for example, by documenting efforts to contact a missing employee and issuing a notice of termination — will be found to have acted fairly.
• The case aligns with earlier Kenyan precedents such as:
• Felistas Acheha Ikatwa v Charles Peter Otieno [2018] eKLR
• Seabolo v Belgravia Hotel (2011) (South African reference often cited in Kenya)
  which establish that where an employee abandons employment, the employer’s acceptance of that act is not an unfair termination.

7. Key Takeaway

In Kenyan employment law, when an employee absconds or deserts work without communication, the employer is entitled to treat the employment relationship as repudiated. Issuing a formal termination notice in such cases does not amount to unfair termination, provided the employer’s actions are reasonable and properly documented.

 

Disclaimer: This article is for informational purposes only and does not constitute legal advice.