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ELRCPartially AllowedIndustrial Cause (as stated in judgment: Memorandum of Claim filed 14 September 2012)· [2013] KEELRC 593 (KLR)

Transport Workers Union v African Safari Diani Adventure [2013] KEELRC 593 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
28 June 2013
RSRadido Stephen
1,661 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a Mombasa cook's dismissal unfair because the employer never gave him a hearing, awarding him about Kshs 158,013.

What this practically means

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Executive summary

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The Transport Workers Union filed a claim on behalf of Grievant Ali Kirao against African Safari Diani Adventure for wrongful termination and unpaid terminal benefits. The Grievant, employed as a cook from March 2004 at a monthly salary of Kshs 12,100, was indefinitely suspended without pay on 30 April 2012 and summarily dismissed on 23 July 2012 on allegations including taking the Respondent's motorbike without permission and absence from work. The Respondent was served but filed no Response, and the Cause proceeded ex parte. The court held that the Union discharged the burden of showing dismissal, shifting the onus to the Respondent to establish procedural fairness under section 41 of the Employment Act. The suspension letter merely notified the Grievant of infractions without a hearing, so the dismissal was procedurally unfair. Further, the Respondent did not prove the reasons for termination or their validity and fairness under sections 43 and 45, rendering the dismissal also substantively unfair. The court awarded one month's salary in lieu of notice (Kshs 12,100), unpaid salaries for the suspension period (Kshs 34,687), holding that absent contractual or statutory basis an employer may not suspend without pay, service pay for 9 years computed at 15 days per year (Kshs 62,826), and 4 months' compensation under section 49 (Kshs 48,400), totalling Kshs 158,013. The claim for 54 days' pending annual leave was denied because the Grievant did not testify to it. A Certificate of Service was ordered, and there was no order as to costs. Judgment delivered in Mombasa on 28 June 2013 by Justice Radido Stephen.

Key legal issues

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01

Procedural fairness under section 41 of the Employment Act

Holding

The dismissal was procedurally unfair as the Grievant was not given a hearing

Reasoning

The suspension letter listed allegations but did not indicate the Grievant was heard or allowed a representative. With the Respondent absent, only the Grievant's evidence and the letter existed. The court drew the inference that section 41's requirements of explanation, representation and hearing were not met, rendering the dismissal procedurally unfair.

p. 2
02

Substantive fairness under sections 43 and 45 of the Employment Act

Holding

The reasons for dismissal were neither proved nor shown to be valid and fair

Reasoning

Section 43 obliges the employer to prove reasons for termination and section 45 to prove they are valid and fair. The Respondent did not participate in the proceedings, so the burden was not discharged. The dismissal was consequently also substantively unfair.

p. 2
03

Compensation under section 49 of the Employment Act

Holding

Four months' gross pay awarded as compensation after considering the section 49(4) factors

Reasoning

Having found the termination unfair, the court considered the 13 factors in section 49(4) and assessed compensation at the equivalent of 4 months' gross salary (Kshs 48,400), well below the 12-month maximum, alongside notice pay under section 35.

p. 3

Legal principles established

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  • An employer must satisfy the procedural fairness requirements of section 41 of the Employment Act before terminating employment
  • An employer may not suspend an employee without pay absent a contractual or statutory basis
  • A Certificate of Service is an employee's entitlement regardless of the circumstances of separation
  • Service pay is computed at 15 days' pay per completed year of service, being basic salary plus house allowance divided by 26 multiplied by the days

Court orders

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  1. 1.Respondent to pay one month salary in lieu of notice (Kshs 12,100)
  2. 2.Respondent to pay unpaid salaries for May up to 23 July 2012 (Kshs 34,687)
  3. 3.Respondent to pay service pay for 9 years (Kshs 62,826)
  4. 4.Respondent to pay 4 months' compensation for unfair termination (Kshs 48,400)
  5. 5.Total award of Kshs 158,013 to the Grievant Ali Kirao
  6. 6.Respondent to issue the Grievant with a Certificate of Service
  7. 7.No order as to costs

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 45
  • Employment Actsection 35 and section 35(5)
  • Employment Actsection 49 and section 49(4)
Jurisdiction invoked
Original jurisdiction of the Industrial Court over a dispute stated as wrongful termination and refusal to pay terminal benefits

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, "Transport Workers Union v African Safari Diani Adventure [2013] KEELRC 593 (KLR)", Case Analysis (2013). Industrial Cause (as stated in judgment: Memorandum of Claim filed 14 September 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/593/eng@2013-06-28

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