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Court of AppealPartially AllowedEmployment and Labour Relations Court Cause No 9 of 2014 (appeal therefrom; appeal from ELRC Kericho)

Unilever Tea (K) Limited v Kenya Plantation & Agricultural Workers Union (Civil Appeal 19 of 2016) (9 May 2024) (Judgment) (with dissent - P Nyamweya, JA) [2024] KECA 540 (KLR)

Court of Appeal of Kenya
9 May 2024
12,078 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~48 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal threw out reinstatement and compensation for a dismissed Unilever Tea worker, finding her summary dismissal was justified and fair.

What this practically means

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Executive summary

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This Court of Appeal judgment (Nakuru, 9th May 2024) disposed of Unilever Tea (K) Limited's appeal against a decision of the Employment and Labour Relations Court at Kericho (Marete J) of 14th December 2015, which had found the summary dismissal of grievant Bethseba Kerubo unlawful and ordered her reinstatement plus 12 months' salary as compensation. The appeal raised three issues: substantive justification, procedural fairness, and the propriety of granting both reinstatement and its alternative relief. By majority (Sichale JA, Korir JA concurring), the appeal was allowed in its entirety and all consequential orders of the ELRC were set aside, with no order as to costs. The majority held the employer had substantive justification under section 44(4) of the Employment Act and clause 24 of the CBA, based on the grievant's admitted request for forgiveness and an Industrial Relations Joint Consultation Report signed by management and union representatives agreeing the misconduct warranted summary dismissal. On procedure, there was substantial compliance with section 41: the grievant received a show cause letter and attended a disciplinary hearing with shop stewards, but wilfully refused to answer questions, invoking an unproven cultural bar on pregnant women participating in cases; she was the author of her own misfortunes. Reinstatement ordered three years after dismissal offended section 12(3)(vii) of the ELRC Act, and both main and alternative reliefs could not stand together, a point conceded by the respondent. Nyamweya JA dissented: no notice to show cause issued for the absenteeism ground, evidence was taken in the grievant's absence, and the refusal to postpone was motivated by pregnancy, prohibited by section 46(a) and Article 27(5); she would have upheld the 12 months' compensation while setting aside reinstatement.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned judge erred in law and fact in disregarding the grievant's and respondent's own admission and in failing to deal with the issue of substantive justification
  2. 2.Whether the learned judge erred in law and fact by holding that the grievant's termination was procedurally unfair and in awarding 12 months' salary as compensation
  3. 3.Whether the learned judge erred in law by exceeding his jurisdiction in ordering that the grievant be reinstated and awarding her both the main relief and the alternative relief

Key legal issues

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01

Substantive justification for summary dismissal

Holding

The appellant firmly established a reason for summary dismissal for gross misconduct based on the grievant's admission seeking forgiveness, the Joint Consultation Report, and clause 24 of the CBA; the trial judge's contrary finding had no basis.

Reasoning

The grievant admitted in evidence to seeking forgiveness for the incident, and an Industrial Relations Joint Consultation Report signed by the appellant's management and the union's representatives on 31st October 2012 expressly agreed that destruction of company property, leaving the workplace without permission and threatening one's life amounted to gross misconduct and that summary dismissal would follow. Under section 44(4) of the Employment Act and clause 24 of the CBA, the employer thereby established a valid reason for summary dismissal, which the trial judge erred in disregarding.

p. 5
02

Procedural fairness under section 41 of the Employment Act

Holding

There was substantial compliance with section 41: the grievant received a show cause letter, attended the disciplinary hearing with shop stewards present, and wilfully refused to answer questions, thereby impeding full compliance.

Reasoning

Section 41 requires explanation of grounds in a language the employee understands and an opportunity to have a representative present and make representations. The grievant was issued a show cause letter dated 13th September 2012, attended the hearing with three shop stewards, and was asked to respond; she refused on the basis of a claimed cultural bar on pregnant women participating in cases, unsupported by evidence. Following Beatrice W. Mbogo v Oceanfreight and Sotik Highlands Tea Estates, section 41 is not a mechanical checklist; substance prevails, and the employer was entitled to proceed in her absence with the stewards present.

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Jurisdiction to order reinstatement and award both main and alternative reliefs

Holding

The trial judge exceeded his jurisdiction by ordering reinstatement three years after dismissal, contrary to section 12(3)(vii) of the ELRC Act, and by awarding both reinstatement and 12 months' compensation; respondent's counsel conceded this.

Reasoning

Section 12(3)(vii) of the Employment and Labour Relations Court Act bars reinstatement where three years have lapsed from dismissal; the dismissal was on 31st October 2012 and judgment delivered 14th December 2015. The respondent's counsel conceded that awarding both the main relief (reinstatement) and the alternative relief (compensation) was in error. Having found the dismissal lawful and fair, the section 49 remedies were unavailable in any event, so all consequential orders fell away.

p. 9
04

Duty of a first appellate court

Holding

As a first appeal, the Court must re-evaluate and consider afresh the evidence and reach its own conclusions.

Reasoning

Citing Rule 31 of the Court's Rules and Abok James Odera v John Patrick Machira, the Court restated that on a first appeal it must re-evaluate, re-assess and re-analyse the evidence on the record and determine whether the trial judge's conclusions should stand, giving reasons either way.

p. 4

Legal principles established

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  • Section 41 of the Employment Act requires substance, not a mechanical checklist; an employer substantially complies where the employee is notified of the charges, given a reasonable opportunity to respond, and the employee's explanations are considered — an employee who wilfully refuses to answer questions cannot later claim procedural unfairness.
  • Where an employee's admission and a joint Industrial Relations Joint Consultation Report between employer and union representatives establish gross misconduct, the employer has substantive justification for summary dismissal under section 44(4) of the Employment Act.
  • An Employment and Labour Relations Court has no jurisdiction to order reinstatement where three years have lapsed from the date of dismissal, and a court cannot award both the main relief of reinstatement and the alternative relief of compensation.

Court orders

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  1. 1.The appellant's appeal is allowed in its entirety
  2. 2.All the consequential orders issued by the Employment and Labour Relations Court (Marete J) on 14th December 2015 are set aside
  3. 3.No order as to costs

The bench

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Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.

majority

Wrote the judgment

Wrote the lead judgment allowing the appeal in its entirety: the grievant's summary dismissal was substantively justified and procedurally fair; the trial judge erred in disregarding admissions and the Joint Consultation Report; reinstatement after three years was beyond jurisdiction. Set aside all consequential orders of the ELRC with no order as to costs.

Accordingly, I find merit in the appellant’s appeal which I allow in its entirety and set aside all the consequential orders issued by the Employment and Labour Relations Court (Marete J), on 14th December 2015, with no order as to costs.p. 9
dissenting

Wrote the judgment

Dissented in a separate judgment: the termination was procedurally unfair because no notice to show cause was issued for the ground of absenteeism, the disciplinary hearing proceeded in the grievant's absence with witnesses not availed to her, and the refusal to postpone was motivated by her pregnancy contrary to section 46(a) of the Employment Act and Article 27(5) of the Constitution. She would have allowed the appeal only partially, setting aside reinstatement but upholding the 12 months' compensation and return of household goods, with each party bearing own costs.

In the end, I would therefore allow the Appellant’s appeal only partially, to the extent of setting aside the order of the trial Court reinstating the grievant, Bethseba Kerubo, to employment without loss of benefits, promotion or emoluments, and the order that the grievant reports back to work on 15th December 2015.p. 20
majority

Wrote the judgment

Wrote a brief separate concurrence wholly agreeing with Sichale JA's reasoning and conclusions.

I have had the advantage of reading the draft judgment of Sichale, JA. I wholly agree with the reasoning and conclusions therein, and I have nothing useful to add.p. 20
On appeal from
Employment and Labour Relations Court at Kericho
Cause No 9 of 2014
Jurisdiction invoked
First appeal to the Court of Appeal under Rule 31 of the Court of Appeal Rules; the matter arises from the Employment and Labour Relations Court

Relief refused

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Reinstatement of the grievant without loss of benefits, promotion or emoluments

Reinstatement was ordered more than three years after dismissal, contrary to section 12(3)(vii) of the Employment and Labour Relations Court Act, and the appeal succeeded on substantive justification and procedural fairness

p. 9

Compensation of 12 months' salary for unlawful termination (Kshs 111,072)

Remedies under section 49 of the Employment Act were unavailable once termination was found substantively justified and procedurally fair

p. 9

Costs

No order as to costs (each party to bear its own costs of the appeal)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, I find merit in the appellant’s appeal which I allow in its entirety and set aside all the consequential orders issued by the Employment and Labour Relations Court (Marete J), on 14th December 2015, with no order as to costs. Since my brother Korir JA, agrees, this will be the final order of the Court.
p. 9Final orders / disposition - appeal allowed in entirety
Accordingly, I find merit in this ground of appeal and hold and find that the grievant termination from employment was procedurally fair and lawful.
p. 9Procedural fairness under section 41 of the Employment Act
there was substantive justification to summarily dismiss the grievant
p. 6Substantive justification for summary dismissal
In my humble respectful view, the grievant was the author of her own misfortunes when the proceedings subsequently proceeded in her absence but in presence of the shop stewards, having deliberately refused to answer the question that were put to her.
Employee who refuses to participate in disciplinary hearing cannot later claim unfairness
the grievant was accorded an opportunity to be heard in accordance with Section 41 of the Employment Act which opportunity she squandered by willfully and deliberately refusing to answer the questions put to her and the only logical inference that can be made is that she did not have any reasonable defence (if at all) to the allegations levelled against her.
p. 9Substantial compliance with section 41 hearing requirements

Issues in the judgment

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minor

The two judgments record different dates for the parties' written submissions

minor

The two judgments record different dates of the grievant's employment (13th April 2012 in the lead judgment versus 13th April 2004 in the dissent) and slightly different monthly salaries (Kshs 9,256 versus Kshs 9,236)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Unilever Tea (K) Limited v Kenya Plantation & Agricultural Workers Union (Civil Appeal 19 of 2016)  (9 May 2024) (Judgment) (with dissent - P Nyamweya, JA) [2024] KECA 540 (KLR)", Case Analysis (2024). Employment and Labour Relations Court Cause No 9 of 2014 (appeal therefrom; appeal from ELRC Kericho). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/540/eng@2024-05-09

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