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ELRCPartially AllowedCause 520 of 2012· [2012] KEELRC 10 (KLR)

SAMSON BULUMA MUMIA v DPL FESTIVE LIMITED (Cause 520 of 2012) [2012] KEELRC 10 (KLR)

Industrial Court of Kenya
23 November 2012
RSRadido Stephen
2,840 words in judgment
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The bottom line

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A Kenyan court ruled that firing a worker for sleeping after being made to work back-to-back shifts was unfair, but workers must still prove every extra claim they make.

What this practically means

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Executive summary

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The claimant, employed as a baker and flour mixer from April 2008 at Kshs 8,330 per month, was dismissed on 30 December 2010 after being found asleep while working a second consecutive shift (9pm to 6am following a 2pm to 9pm shift). He claimed one month's notice pay, accrued house allowance, service pay, leave pay, underpayments and compensation for unfair termination totalling Kshs 310,706.13. The respondent maintained he was summarily dismissed for gross misconduct, namely sleeping at work, verbally abusing seniors, and deserting duty. Neither party filed submissions despite agreeing to do so, and the cause was determined on the pleadings alone. The court found the 'sleeping at work' ground unjustifiable given the claimant had been required to work back-to-back shifts, and that sleeping at work is not an enumerated ground for summary dismissal under section 44(4) of the Employment Act. The abusive-language ground failed for want of particulars and witnesses; the desertion claim failed for want of attendance records, and was contradicted by the respondent's own pre-litigation correspondence. The court held the mandatory requirements of sections 41, 43 and 45 were not complied with and the termination was unfair. It awarded one month's notice pay and six months' salary as compensation (Kshs 58,310 total), but dismissed the house allowance, service pay, leave and underpayments heads for lack of evidentiary basis, and made no order as to costs. Judgment delivered by Radido Stephen J on 23 November 2012.

Key legal issues

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01

Whether termination for sleeping at work was justified

Holding

Not justified where the claimant had been asked to work two consecutive shifts; 'sleeping at work' is not an enumerated ground for summary dismissal under section 44(4)

Reasoning

The respondent did not deny the claimant's shift was 2pm to 9pm nor that he accepted an additional 9pm to 6am shift. Given the biological reality of sleep, the court found dismissal on this ground unjustifiable, noting sleeping at work is not expressly listed in section 44(4) though it could arguably fall under wilful neglect.

p. 3
02

Whether the grounds of abusive language and desertion were established

Holding

Both grounds failed for want of particulars and evidence; the court found as a fact that the claimant was terminated and did not desert

Reasoning

The respondent gave no details of the supervisor insulted and did not call any witness. No attendance records or documentation supported the desertion allegation, and pre-litigation correspondence with the union and Ministry of Labour never mentioned desertion. The conflicting assertions were resolved in the claimant's favour.

p. 3
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Appropriate remedies for unfair termination

Holding

One month's pay in lieu of notice and six months' salary as compensation awarded; other heads dismissed for lack of evidentiary basis

Reasoning

Notice pay followed from sections 35(1)(c) and 49(1)(a) as read with section 50. Compensation of six months reflected the short two-year service, the non-specialised nature of the duties, and the section 49(4) factors. House allowance, service pay, leave and underpayment claims failed for want of proof.

p. 5

Legal principles established

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  • An employer bears the statutory burden of proving the validity and fairness of the reason for termination
  • Summary dismissal requires compliance with the mandatory procedural requirements of sections 41, 43 and 45 of the Employment Act
  • The Court's remedial powers under section 49 of the Employment Act are not exclusive; the Court may grant any other appropriate, lawful and fair remedy under section 12(3) of the Industrial Court Act
  • Compensation under section 49(1)(c) is discretionary, not automatic upon a finding of unfair termination, and must be exercised within the parameters of section 49(4)

Court orders

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  1. 1.One month salary in lieu of Notice Kshs 8330/-
  2. 2.Six months compensation for unfair termination Kshs 49980/- (total award Kshs 58,310/-)
  3. 3.Prayers for accrued house allowance, service pay, leave and underpayments dismissed
  4. 4.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(e)
  • Industrial Court (Procedure) Rules 2010rules 4(e), 14(4), 21
  • Employment Act, 2007sections 10, 35(1)(c), 35(5), 41, 43, 44(4), 45, 49(1)(a)-(c), 49(4), 50, 74
  • Industrial Court Act, 2011sections 12(3), 20
  • Labour Institutions Act
  • Regulation of Wages (General) Order
  • Regulation of Wages (Baking, Flour Confectionary and Biscuit Making Trades Wages Council Establishment) Order
Jurisdiction invoked
Industrial Court Act, 2011 (established under Article 162(2) of the Constitution); Industrial Court (Procedure) Rules 2010

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, "SAMSON BULUMA MUMIA v DPL FESTIVE LIMITED (Cause 520 of 2012) [2012] KEELRC 10 (KLR)", Case Analysis (2012). Cause 520 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/10/eng@2012-11-23

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