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Court of AppealPartially AllowedCivil Appeal No. 70 of 2017· [2020] KECA 209 (KLR)

Kenya Union of Commercial Food and Allied Workers v Kisii Bottlers Ltd [2020] KECA 209 (KLR)

Court of Appeal
6 November 2020
1,537 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that even a justified dismissal is unfair if the employer skips the mandatory disciplinary hearing procedure under section 41 of the Employment Act.

What this practically means

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Executive summary

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This is a first appeal from the Employment and Labour Relations Court at Kericho (Marete, J.), which had dismissed a trade union's claim on behalf of its member, Thomas Osano Magangi, a Mirror Inspector dismissed by Kisii Bottlers Ltd in November 2015 for absenteeism and insubordination. The Court of Appeal, in a single judgment of the court delivered by Koome, Musinga and J. Mohammed, JJ.A., reconsidered the evidence as required on a first appeal. It upheld the trial court on substance: the grievant failed to notify his employer of his illness or obtain a sick sheet, so the show cause letter and dismissal were substantively warranted. However, the Court found that the respondent did not adhere to the mandatory procedure in section 41(1) of the Employment Act, 2007 - the grievant was not given an explanation for the disciplinary action in the presence of another employee or a shop floor union representative - rendering the termination unfair under section 45(2). Reinstatement was refused as available only in exceptional circumstances (following Kenya Airways v Aviation & Allied Workers Union), as were the claims for suspension-period salary and general damages of Kshs.1.2 million. Exercising discretion under section 49(4), the Court awarded three months' salary as compensation for the unprocedural termination, balancing the grievant's roughly 12 years of service against his own misconduct. The appeal was partially allowed, with one third of the costs of the appeal and the trial court awarded to the appellant. This ruling binds subordinate courts and tribunals on the mandatory nature of section 41(1) compliance.

Key legal issues

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01

Whether the grievant's absence from work was excused by illness

Holding

The grievant did not discharge his obligation to notify the employer or obtain a sick sheet; his absence was unexplained until he returned to work, warranting the show cause letter and dismissal on that ground.

Reasoning

Although the grievant was allegedly treated at a dispensary and given two days' sick off, there was no evidence that treatment notes were delivered to the employer. The show cause letter's author testified that he had not been notified of the illness. The court therefore found the employee was obliged to seek leave and obtain a sick sheet, which he failed to do.

p. 2
02

Whether the termination followed the mandatory procedure under section 41(1) of the Employment Act

Holding

The termination was procedurally unfair because the respondent did not explain the disciplinary action to the grievant in the presence of another employee or shop floor union representative, a mandatory requirement, rendering the termination unfair under section 45(2).

Reasoning

Despite the substantively valid reason for dismissal, the court found the respondent did not adhere to section 41(1)'s mandatory procedure: no evidence showed the grievant was given an explanation in the presence of a fellow employee or union representative. Under section 45(2), such non-compliance deems the termination unfair, entitling the grievant to compensation under section 49(4).

p. 2
03

What compensation was appropriate for the unprocedural termination

Holding

An award of three months' salary was sufficient compensation, considering the grievant's roughly 12 years of service, the circumstances of termination, and his own misconduct in absenting himself and insubordinating his production manager.

Reasoning

Exercising discretion under section 49(4) of the Employment Act, the court weighed the grievant's length of service (about 12 years), the circumstances of the termination, and the grievant's conduct - unexplained absence and insubordination. It concluded that three months' salary was adequate compensation for the unprocedural, though substantively warranted, dismissal.

p. 2
04

The standard of review on a first appeal

Holding

As a first appellate court, the Court must reconsider the evidence, evaluate it and draw its own conclusions, while making due allowance for the fact that it neither saw nor heard the witnesses.

Reasoning

Restating the established first-appeal standard, the court noted its duty to re-evaluate the evidence and reach its own conclusions, tempered by the disadvantage of not having observed witness demeanour, citing James Odera T/A A.J. Odera v John Patrick Machira & Company Advocates.

p. 2

Legal principles established

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  • Before terminating employment on grounds of misconduct, poor performance or physical incapacity, an employer must explain the reasons to the employee in a language the employee understands, in the presence of another employee or a shop floor union representative of the employee's choice; failure to do so renders the termination unfair under section 45(2) of the Employment Act.
  • An employee is under an obligation to seek leave of absence from the employer and, in the event of sickness, to obtain a sick sheet from the employer; unnotified absence may justify disciplinary action notwithstanding illness.
  • Reinstatement is a remedy available only in very exceptional circumstances.

Court orders

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  1. 1.Allowance of the appeal in part on the ground that the termination was unprocedural
  2. 2.Award of three (3) months' salary as compensation for unprocedural termination of the grievant's employment
  3. 3.Award of one third of the costs of the appeal and one third of the costs in the trial court to the appellant

Authorities

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Legislation

  • Employment Act, 2007section 41(1)
  • Employment Act, 2007section 42(1)
  • Employment Act, 2007section 45(2)
  • Employment Act, 2007section 49(4)

Cases cited (2)

  • James Odera T/A A.J. Odera v John Patrick Machira & Company Advocates
    [2013] eKLR
  • Kenya Airways limited v Aviation & Allied Workers Union Kenya & 3 others
    [2014] eKLR
On appeal from
Employment and Labour Relations Court of Kenya at Kericho
E.L.R.C Case No. 86 of 2016
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (employment and labour relations matter)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Union of Commercial Food and Allied Workers v Kisii Bottlers Ltd [2020] KECA 209 (KLR)", Case Analysis (2020). Civil Appeal No. 70 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/209/eng@2020-11-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.