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ELRCPartially AllowedNot stated in the excerpt (Memorandum of Claim; response filed 31st October 2012)· [2013] KEELRC 111 (KLR)

Kenya Chemical & Allied W. Union v Leather Life Epz Limited [2013] KEELRC 111 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
6 September 2013
1,320 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer couldn't prove why it fired two workers, so the court converted their summary dismissals into normal terminations and awarded them pay and compensation.

What this practically means

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Executive summary

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The Kenya Chemical and Allied Workers Union sued Leather Life EPZ Ltd on behalf of two grievants, Jacinta Akoth Arogo (a Secretary/Senior Administration Assistant employed in December 2008) and Stephen Kamau Mbatia (an accountant employed on 17th January 2009), claiming that their dismissals were wrongful and unfair and seeking reinstatement or, in the alternative, compensation and terminal benefits. The 1st Grievant was allegedly dismissed verbally on 27th January 2011 after a dispute over a delayed shipment to India, with no dismissal or warning letters. The 2nd Grievant received warning letters in August 2011 for alleged rude behaviour and was summarily dismissed on 15th September 2011 under Section 44 of the Employment Act for undisclosed criminal conduct reported to the police. The Respondent alleged the 1st Grievant deserted duty and that the 2nd Grievant habitually insulted his superiors, but produced no documentary substantiation and relied on the repealed Employment Act Cap 226. The court adopted the conciliation report by Labour Officer Mr. P. N. Macharia, finding the Respondent had failed to discharge its burden under Section 47(5) of the Employment Act and that the dismissals contravened Section 45(2)(a) and (c), being neither for valid reasons nor procedurally fair. Each Grievant's dismissal was reduced to a normal termination with full statutory entitlements, one month's notice pay and ten months' salary as compensation (Kshs.186,648/= for the 1st Grievant and Kshs.288,750/= for the 2nd). Reinstatement was not granted. The Respondent was ordered to pay the costs of the suit.

Key legal issues

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01

Validity and fairness of the 1st Grievant's dismissal

Holding

The dismissal of the 1st Grievant was substantively unlawful and procedurally unfair; the allegations of desertion were unsubstantiated and she was denied a hearing.

Reasoning

The Respondent alleged the 1st Grievant deserted duty on 28th January 2011 but produced no documentation to substantiate this. The specific allegations in the Statement of Claim remained largely uncontroverted. No formal warning letter with particulars of non-performance was presented. The court adopted the conciliation report recommending 10 months' salary compensation and full statutory entitlements.

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02

Validity and fairness of the 2nd Grievant's summary dismissal

Holding

The Respondent failed to establish a justifiable reason for the 2nd Grievant's summary dismissal; the allegations were generalised and he was not accorded a hearing.

Reasoning

The Labour Officer found the allegations against the 2nd Grievant were generalised without specifics, which the court entirely agreed with. The conciliation report confirmed he was not given an opportunity to explain his case before summary dismissal. Worse, he was dismissed for undisclosed criminal conduct reported to the police. The court adopted the recommendation of conciliator Mr. P. N. Macharia that the dismissal be reduced to normal termination with 10 months' salary compensation.

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03

Burden of justifying dismissal under Section 47(5) of the Employment Act

Holding

The employer failed to discharge its statutory burden of justifying the grounds for dismissing both Grievants; the dismissals contravened Section 45(2)(a) and (c).

Reasoning

Section 47(5) requires the employer to justify the grounds for dismissal. The Respondent relied on the repealed Employment Act Cap 226 and produced no documentation supporting its allegations. The court found the dismissals were neither for valid reasons nor in accordance with fair procedure, rendering them substantively unlawful and procedurally unfair.

p. 3

Legal principles established

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  • An employer bears the burden under Section 47(5) of the Employment Act of justifying the grounds for dismissal, failing which the dismissal is substantively unlawful and procedurally unfair under Section 45(2)(a) and (c).

Court orders

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  1. 1.Each of the Grievants' summary dismissals reduced to a normal termination with full statutory entitlements
  2. 2.1st Grievant (Jacinta Akoth Arogo) to be paid notice pay of Kshs.16,968/= and compensation of Kshs.169,680/=, total Kshs.186,648/=
  3. 3.2nd Grievant (Stephen Kamau Mbatia) to be paid notice pay of Kshs.26,250/= and compensation of Kshs.262,500/=, total Kshs.288,750/=
  4. 4.Respondent to pay the costs of the suit

Authorities

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Legislation

  • Employment ActSection 44 (d), (e) and (g)
  • Employment ActSection 45 (2) (a) and (c)
  • Employment ActSection 47 (5)
  • Employment Act Cap 226 (Laws of Kenya) [repealed]Noted as repealed and replaced by the Employment Act, 2007
  • Labour Relations Act, 2007Section 62 (1)
Jurisdiction invoked
Reference of a trade dispute under Section 62(1) of the Labour Relations Act, 2007 following failed conciliation

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 Chemical & Allied W. Union v Leather Life Epz Limited [2013] KEELRC 111 (KLR)", Case Analysis (2013). Not stated in the excerpt (Memorandum of Claim; response filed 31st October 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/111/eng@2013-09-06

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