Kenya Chemical & Allied W. Union v Leather Life Epz Limited [2013] KEELRC 111 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Validity and fairness of the 1st Grievant's dismissal
The dismissal of the 1st Grievant was substantively unlawful and procedurally unfair; the allegations of desertion were unsubstantiated and she was denied a hearing.
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.
Validity and fairness of the 2nd Grievant's summary dismissal
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.
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.
Burden of justifying dismissal under Section 47(5) of the Employment Act
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).
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 The Respondent relied on the repealed Employment Act Cap 226 and produced no documentation supporting its allegations.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.
Legal principles established
#- 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
#- 1.Each of the Grievants' summary dismissals reduced to a normal termination with full statutory entitlements
- 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/=
- 3.2nd Grievant (Stephen Kamau Mbatia) to be paid notice pay of Kshs.26,250/= and compensation of Kshs.262,500/=, total Kshs.288,750/=
- 4.Respondent to pay the costs of the suit
- Jurisdiction invoked
- Reference of a trade dispute under Section 62(1) of the Labour Relations Act, 2007 following failed conciliation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.