TAILORS AND TEXTILE WORKERS UNION V SPIN KNIT LIMITED [2013] KEELRC 492 (KLR)
The bottom line
#A Kenyan court ruled a factory worker's dismissal unfair because he was never given notice or a hearing before being fired.
What this practically means
#Executive summary
#Key legal issues
#Effective date of employment
The grievant was employed effective 2002 as a machine operator
The court relied on the letter dated 4.07.2008 (appendix 3A on the memorandum of claim) confirming employment as a machine operator effective 2002 at a gross monthly salary of Ksh.5,691.00, notwithstanding the casual appointment letter of 4.12.2006.
Fairness of termination
The termination was unfair - no notice or hearing, and the reason was invalid because the machine fault was known to the respondent
The grievant was dismissed without a hearing, which is a mandatory statutory requirement even in gross misconduct cases. Further, the respondent maintained a reported faulty machine and could not charge the grievant for losses attributable to its own defective operational systems, contrary to section 43 of the Employment Act and Article 41(1) of the Constitution. Twelve months' gross salary was awarded as compensation.
Gratuity versus service pay under NSSF membership
The grievant was entitled to gratuity under clause 27 of the collective agreement notwithstanding NSSF membership
Section 35(6) precludes service pay where the employee is a member of the Fund, but parties may negotiate better and more favourable gratuity. Clause 27 of the collective agreement was deliberately intended to confer better separation payment in addition to Fund benefits; the most favourable provision applies.
Res judicata
The prior suit dismissed for want of prosecution was no bar
The previous suit was not heard on merits, and at the time of filing, jurisdiction over the dispute lay with the Industrial Court, not the magistrates' court; res judicata requires a court of competent jurisdiction.
Discharge voucher
The voucher was inconclusive; the respondent waived its conclusive effect
The respondent subsequently agreed to pay beyond the amount in the discharge voucher, demonstrating by conduct that the voucher was not a full and final settlement and served no useful purpose.
Legal principles established
#- Except for daily-wage contracts, notice and hearing are mandatory in summary dismissal; section 44(1) only entitles the employer to shorter notice on account of gross misconduct
- It is unfair labour practice for an employer to visit adverse consequences on an employee for losses attributable to deficiencies in the employer's operational policies and systems
- Where an employee is entitled to more than one provision for gratuity or service pay, the employee is entitled to the most favourable provision; section 35(6) does not preclude better contractual service pay
- Res judicata does not apply where previous proceedings were not before a court with competent jurisdiction and were not heard on the merits
Court orders
#- 1.A declaration that the termination of the employment relationship was unfair
- 2.The respondent to deliver to the grievant the certificate of service
- 3.The respondent to pay the grievant a sum of Ksh.104,291.60 plus interest at court rates from the date of judgment till full payment
- 4.The respondent to pay costs of the case
- Jurisdiction invoked
- Section 47(3) of the Employment Act, 2007 and section 12 of the Labour Institutions Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "TAILORS AND TEXTILE WORKERS UNION V SPIN KNIT LIMITED [2013] KEELRC 492 (KLR)", Case Analysis (2013). Industrial Court Cause (grievant Peter Manwa Obwogi; memorandum of claim filed 21.09.2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/492/eng@2013-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.