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ELRCPartially AllowedIndustrial Court Cause (Nakuru) – memorandum of claim dated 24.09.2010· [2013] KEELRC 816 (KLR)

Kenya Plantation and Agricultural Workers Union v Eastern Produce Kenya Limited [2013] KEELRC 816 (KLR)

Industrial Court of Kenya
4 October 2013
1,577 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan tea estate worker wrongfully dismissed without notice or hearing won nearly Kshs.285,000 because even gross misconduct requires a fair hearing first.

What this practically means

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Executive summary

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The claimant union filed a memorandum of claim on behalf of its member Vincent Amwoga, a tractor driver summarily dismissed on 19.04.2010 by Eastern Produce Kenya Limited, Sitoi Estate, for allegedly leaving 17 bags of green leaf in the field with intent to offset defrauded kilos. The claimant sought a declaration that the summary dismissal was unfair, reinstatement or, alternatively, conversion to normal termination with terminal dues of Kshs.166,454.00 under the CBA, conciliation costs, interest and costs. The respondent denied liability, alleging abuse of court process, and relied on a 22.04.2010 meeting between management and shop stewards upholding the dismissal. The grievant and two of the respondent's witnesses testified. The court found that the grievant was accorded neither notice nor a hearing before termination, contrary to sections 41 and 44 of the Employment Act, 2007, and that a hearing is mandatory even in cases of gross misconduct. The 22.04.2010 agreement was held a nullity for validating an unfair dismissal and was no bar to the suit. Judgment was entered for the claimant: a declaration that the summary dismissal was unfair; payment of Kshs.284,898.00 (being Kshs.166,454.00 terminal dues, Kshs.108,444.00 as twelve months' gross salary, and Kshs.10,000.00 conciliation costs) by 1.12.2013, failing which interest at court rates; and costs of the suit. The claim succeeded substantially, though reinstatement was not granted.

Key legal issues

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01

Whether the summary dismissal was unfair

Holding

The termination was unfair because the grievant was accorded neither notice nor a hearing, contrary to sections 41 and 44 of the Employment Act, 2007.

Reasoning

The court found the grievant was not given notice or a hearing prior to termination. It reaffirmed its earlier holding in Shankar Saklani v DHL Global Forwarding (K) Ltd that affording an employee a hearing even in cases of gross misconduct is a mandatory statutory requirement, and that section 44(1) only permits a shorter notice on account of gross misconduct, not dispensation with notice and hearing altogether.

p. 3
02

Whether the 22.04.2010 management/shop stewards agreement barred the claim

Holding

The agreement was a nullity and did not bar the claim.

Reasoning

The meeting merely upheld a dismissal already found illegal and unfair, validating a nullity. It was founded on no statutory or agreed procedure between the parties, and it was not a disclaimer absolving the respondent of future liability. Authorities cited on the binding nature of contracts were held inapplicable.

p. 3
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Entitlement to the prayers sought

Holding

The claimant was awarded Kshs.166,454.00 terminal dues, twelve months' gross salary of Kshs.108,444.00 as compensation for unfair termination, and Kshs.10,000.00 conciliation costs.

Reasoning

In the absence of any mitigating factors by the respondent and in view of the unfair termination, the grievant was entitled to twelve months' gross salary at Kshs.9,037.00 per month. The conciliation costs of Kshs.10,000.00 were deemed admitted as they were not denied. Total award was Kshs.284,898.00.

p. 4

Legal principles established

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  • Notice and a hearing are mandatory before summary dismissal for gross misconduct, save for daily-wage contracts; the only leeway under section 44(1) is a shorter notice.

Court orders

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  1. 1.A declaration that the termination of the grievant's employment by summary dismissal was unfair
  2. 2.The respondent to pay the grievant Kshs.284,898.00 by 1.12.2013, in default interest at court rates from the date of judgment till full payment
  3. 3.The respondent to pay costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 49(3)(a)
  • Employment Act, 2007sections 41 and 44
  • Employment Act, 2007section 35

Cases cited (1)

  • Shankar Saklani v DHL Global Forwarding (K) Limited
    Industrial Court Cause No. 562 of 2012 at Nairobi
Jurisdiction invoked
Employment Act, 2007 (Industrial Court jurisdiction over employment disputes; sections 35, 41, 44 and 49(3)(a) applied)

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 Plantation and Agricultural Workers Union v Eastern Produce Kenya Limited [2013] KEELRC 816 (KLR)", Case Analysis (2013). Industrial Court Cause (Nakuru) – memorandum of claim dated 24.09.2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/816/eng@2013-10-04

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