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ELRCPartially AllowedCause No. 38 of 2001· [2002] KEELRC 6 (KLR)

KENYA UNION OF COMMERCIAL, FOOD & ALLIED WORKERS v KENYA BREWERIES LTD [2002] KEELRC 6 (KLR)

Industrial Court of Kenya
22 April 2002
CCCharles P. ChemmuttutAKA.K. KerichJKJ.M. Kilonzo
1,042 words in judgment
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The bottom line

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Kenya Breweries was ordered to pay a worker terminal benefits and 12 months' salary after wrongly ignoring a Medical Board's advice to reinstate him.

What this practically means

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Executive summary

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The Union brought a trade dispute under the Trade Disputes Act, Cap. 234, challenging the Company's refusal to reinstate its member, Mr. Solomon K. Too, a Process Minder employed in 1992 and retired on medical grounds in November 1995 on the recommendation of the Company doctor. The grievant appealed, was re-examined, and a Medical Board convened at Kapsabet District Hospital on 9th October 1998 assessed his permanent partial disability at 30%, found signs of recovery after surgery, and concluded there was no point retiring him on medical grounds and that he stood a chance of reinstatement and re-deployment. The Director of Medical Services concurred. The Company nonetheless refused reinstatement. The matter proceeded ex-parte on 17th April 2002 after the Company repeatedly failed to file its reply statement despite directions. The Court, presided over by Chemmuttut, J with two Members, held that the Company had conveniently and deliberately ignored the expert medical recommendation and that the grievant's case must succeed. However, considering the inordinate lapse of over six years since the unlawful retirement, the Court declined reinstatement and instead ordered payment of all terminal benefits under the grievant's terms of engagement or the applicable collective agreement, plus full compensation equivalent to 12 months' salary for loss of employment. The Judge also cautioned parties against seeking adjournments through correspondence. The award was delivered at Nairobi on 22nd April 2002 after consultation with both Members.

Key legal issues

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01

Whether the refusal to reinstate the grievant despite the Medical Board's recommendation was lawful

Holding

The Company erred in ignoring the Medical Board's recommendation; the retirement was unlawful and the case must succeed

Reasoning

The Medical Board found the grievant had 30% permanent partial disability which could not prevent him from working, noted recovery after surgery, and stated there was no point retiring him on medical grounds. The Director of Medical Services concurred. The Court held the Company conveniently and deliberately ignored this expert recommendation and ought to have reinstated the grievant without reservation.

p. 2
02

Whether reinstatement or compensation was the appropriate remedy

Holding

Compensation rather than reinstatement, given the lapse of over six years

Reasoning

Although the grievant established unlawful retirement and would ordinarily merit reinstatement, the Court weighed the inordinate lapse of over six years since the retirement. It concluded that the ends of justice would be met by an award of terminal benefits under his terms of engagement or the applicable collective agreement, plus full compensation of 12 months' salary.

p. 2

Legal principles established

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  • An employer ought to accept the expert medical opinion of a duly convened Medical Board and reinstate an employee wrongly retired on medical grounds where the Board finds the employee fit for reinstatement
  • Where reinstatement is impracticable due to lapse of time, terminal benefits and compensation equivalent to 12 months' salary suffice

Court orders

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  1. 1.The Company to pay the grievant all his terminal benefits pursuant to the terms and conditions of his engagement or the parties' collective agreement in force at the material time
  2. 2.The Company to pay the grievant full compensation equivalent to 12 months' salary for loss of employment
  3. 3.Caution to disputing parties that the Court will not entertain applications for adjournment through correspondence

Authorities

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Legislation

  • Trade Disputes Act, Cap. 234, Laws of KenyaSection 14(7), (9)(e) and (f)
Jurisdiction invoked
Section 14(7) and (9)(e) and (f) of the Trade Disputes Act, Cap. 234, Laws of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "KENYA UNION OF COMMERCIAL, FOOD & ALLIED WORKERS v KENYA BREWERIES LTD [2002] KEELRC 6 (KLR)", Case Analysis (2002). Cause No. 38 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2002/6/eng@2002-04-22

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