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ELRCPartially AllowedCause No. 446 of 2012· [2013] KEELRC 918 (KLR)

Andrew O. Dulo v Chemilil Sugar Company Ltd [2013] KEELRC 918 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
28 November 2013
1,629 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, Andrew O. Dulo, was employed by the respondent in 2003 as an office messenger, rising to clerk grade UG 02. In October 2008 he was arrested on allegations of stealing copper wires valued at Ksh 137,907.75 belonging to the respondents, suspended on half pay, and terminated on 23.6.2009 while criminal charges were pending. He was acquitted on 21.3.2011 under section 210 of the Criminal Procedure Code, the prosecution case having been hearsay. He sued for unfair termination and non-payment of terminal dues, claiming notice pay, unpaid salary, accrued leave, leave travelling allowance, service pay and maximum compensation, plus reinstatement. The respondents, through the Federation of Kenya Employers, maintained that he stole the wires and was paid his dues. The court framed three issues: justification of the dismissal, payment of dues, and entitlement to relief. It found the termination unjustified: the key witness was never called, and the suspension letter was not copied to the union contrary to clause 9 of the Collective Bargaining Agreement. Section 41 of the Employment Act 2007, Article 50 of the Constitution and ILO Convention No. 158 all require a hearing before termination. The court also found that the respondents failed to prove payment of dues. It awarded Ksh 488,939.80 comprising notice pay, unpaid half salary, accrued leave, service pay and 12 months' salary as damages, ordered a certificate of service, and awarded costs to the claimant. Reinstatement was not granted.

Key legal issues

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01

Whether the termination was justified

Holding

Termination was unjustified because the claimant was not accorded a hearing and the suspension letter was not copied to the union contrary to the CBA

Reasoning

The criminal acquittal under section 210 CPC (prosecution evidence being hearsay) undermined allegations of theft; the key witness was never called before the respondent. Clause 9(ii)(c) of the CBA required suspension/show cause letters to be copied to the Union Branch Secretary within seven days, which was breached. Section 41 of the Employment Act 2007 mandates an explanation and hearing before termination, reinforced by Article 50 of the Constitution and ILO Convention No. 158.

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02

Whether the claimant was paid terminal dues

Holding

The claimant was never paid any terminal dues

Reasoning

The termination letter indicated dues to be paid subject to clearance of liabilities. The respondents alleged payment but failed to prove it. The burden of proving payment lay on the respondents and they discharged it not.

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03

Reliefs entitlement

Holding

The claimant was awarded notice pay, unpaid half salary, accrued leave, service pay and 12 months' salary as damages

Reasoning

The court awarded dues as set out: two months' notice pay under clause 10(c) of the CBA, unpaid half salary for the suspension period, accrued leave of 159.79 days admitted by the respondents, service pay of 20 days per year for 7 years, and 12 months' salary as damages for the unlawful termination.

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Legal principles established

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  • An employer must accord an employee a hearing before termination on grounds of misconduct
  • An employee who was suspended and whose show cause letter was not copied to the union breaches the CBA procedure
  • It is the employer's burden to prove payment of terminal dues

Court orders

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  1. 1.2 months salary in lieu of notice of Ksh 34,320.00
  2. 2.Unpaid half salary from October 2008 to June 2009 of Ksh 77,220.00
  3. 3.Accrued leave for 159.79 days of Ksh 91,399.80
  4. 4.Service pay of 20 days per year for 7 years of Ksh 80,080.00
  5. 5.Damages for unlawful termination of 12 months salary of Ksh 205,920.00
  6. 6.Total award of Ksh 488,939.80
  7. 7.Certificate of service to be issued to the claimant
  8. 8.Respondents to meet costs of the suit
Jurisdiction invoked
Employment and labour relations dispute before the Industrial Court under Article 162(2) of the Constitution

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, "Andrew O. Dulo v Chemilil Sugar Company Ltd [2013] KEELRC 918 (KLR)", Case Analysis (2013). Cause No. 446 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/918/eng@2013-11-28

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