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ELRCPartially AllowedCause No. 1186 of 2012· [2013] KEELRC 755 (KLR)

Kenya Union of Printing Publishing Paper Manufacturers and Allied Workers v Jam Grac Investments [2013] KEELRC 755 (KLR)

Industrial Court of Kenya
20 June 2013
2,018 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that sacking a worker without letting him defend himself was unfair and ordered the employer to pay him nearly Kshs.200,000.

What this practically means

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Executive summary

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The Claimant union, registered to represent employees in printing, publishing and allied industries, brought a Memorandum of Claim dated 2nd July 2012 on behalf of grievant Simon Mutuku Mutinda, a newspaper packer employed by the Respondent, Jam Grac Investments, a contractor providing newspaper packing and wrapping services to Nation Media Group. The Claimant sought re-instatement or, alternatively, 12 months' salary compensation for wrongful termination, underpayment claims for the years 2006 to 2011, and severance pay, totalling Kshs.239,452.20. The Respondent denied employing the grievant as alleged, contended he was a temporary employee engaged in August 2011 and lawfully terminated for deliberately packing excess newspapers for personal gain. The court heard the grievant and two witnesses for the Respondent. It found the grievant was never given an opportunity to defend himself and therefore suffered unfair termination, and that he was underpaid per the statutory minimum wages orders. Re-instatement was refused because Nation Media Group, on whose premises the Respondent operates, had barred the grievant from entry, and Nation Media Group was not a party to the claim. The court awarded 12 months' salary compensation of Kshs.83,988.00 and underpayment of Kshs.110,167.20, dismissed the severance pay claim because the grievant was not declared redundant, and directed issuance of a Certificate of Service under section 51 of the Employment Act. Judgment was entered for the Claimant at Kshs.194,155.00 with no orders as to costs. Read in open court on 20th June 2013 by Lady Justice Maureen Onyango.

Key legal issues

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01

Unfair termination

Holding

The termination was unfair because the grievant was never given an opportunity to defend himself

Reasoning

The court weighed the pleadings, oral testimony of the claimant and the two respondent witnesses, and written submissions. Although the Respondent alleged deliberate over-packing of newspapers for personal gain, the grievant had no previous misconduct record, was not issued any termination letter, and no warning was considered. The court found the lack of a hearing rendered the termination unfair.

p. 3
02

Re-instatement as remedy

Holding

Re-instatement was refused as impracticable

Reasoning

Both parties pleaded and all witnesses confirmed that the work was performed within Nation Media Group premises and that the grievant had been barred from entering those premises by Nation Media Group's Security Manager. Since Nation Media Group was not a party to the claim, no order could be made against it, making re-instatement impossible.

p. 4
03

Compensation for unfair termination

Holding

12 months' gross salary compensation of Kshs.83,988.00 awarded

Reasoning

Having found unfair termination and that the grievant had worked for the Respondent from 2002 as admitted by RW1, the court found the grievant entitled to full compensation as prayed, awarding 12 months' salary at the claimed rate of Kshs.6,999 per month.

p. 4
04

Underpayment

Holding

Underpayment of Kshs.110,167.20 awarded based on statutory minimum wages orders

Reasoning

The court found the grievant was underpaid as reflected in the statutory minimum wages orders attached to the claimant's written submissions, covering the years 2006 to 2011, and awarded the claimed underpayment amounts.

p. 3

Legal principles established

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  • Termination without giving an employee an opportunity to defend himself is unfair termination
  • An employee is entitled to a certificate of service under section 51 of the Employment Act

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent in the sum of Kshs.194,155.00
  2. 2.Issuance of a Certificate of Service to the grievant
  3. 3.No orders for costs

Authorities

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Legislation

  • Industrial Court Actre-instatement without loss of benefits
  • Employment Actsection 51
Jurisdiction invoked
Industrial Court Act; Employment Act (first-instance labour dispute under the Industrial Court's jurisdiction)

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 Union of Printing Publishing Paper Manufacturers and Allied Workers v Jam Grac Investments [2013] KEELRC 755 (KLR)", Case Analysis (2013). Cause No. 1186 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/755/eng@2013-06-20

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