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ELRCPartially AllowedCause Number 782 of 2011· [2014] KEELRC 244 (KLR)

Kenya Electrical Trades & Allied Workers Union v Kenya Power & Lighting Company Limited [2014] KEELRC 244 (KLR)

Industrial Court at Nairobi
18 September 2014
JRJames Rika
5,017 words in judgment
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The bottom line

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Kenya's Industrial Court ruled Kenya Power unfairly fired a sick employee, ordering 10 months' salary because the company proved nothing and never gave her a hearing.

What this practically means

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Executive summary

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The Claimant Union brought this unfair termination claim on behalf of its member, Fauzia Said Faud, a General Worker employed by Kenya Power & Lighting Company from 2nd March 1992 who rose to become a Debt Controller. Her contract was terminated on 28th July 2008 on grounds of absenteeism, lateness and poor work performance. She sought declarations that the termination was unlawful and procedurally defective, reinstatement, and payment of salaries for the period out of employment. The Respondent maintained the termination was fair and justified. Rika J found the promotion letters and 17 years of unblemished service indicated satisfactory performance, with no appraisal records supporting the employer's claims. Negligence was alleged without particulars; attendance registers were not produced; and the Grievant's absences were explained by hospitalisation for surgery, whose bills the Respondent itself paid. Warnings dating back to 1995 had expired under clause 26 of the CBA. Procedurally, the show-cause letter contained general accusations, no disciplinary hearing was held, and the process continued while the Grievant was undergoing surgery, contrary to Sections 41 and 45 of the Employment Act 2007. The Court declared the termination unfair on both substantive and procedural grounds. Reinstatement was declined as impracticable after six years; instead, the Grievant was awarded 10 months' gross salary (Kshs. 430,690) plus salary up to 28th July 2008, three and a quarter months' salary in lieu of notice, and 73 days' annual leave pay. No order was made on costs and interest.

Key legal issues

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01

Substantive justification for termination

Holding

Termination was not substantively justified; the employer failed to prove absenteeism, lateness, negligence or poor performance

Reasoning

The Grievant's promotion and long service suggested satisfactory performance, and there were no performance appraisal records showing otherwise. Negligence was alleged without particulars. Attendance records were not produced. Sick-offs from the Agha Khan Hospital were delivered to the Supervisor, the Respondent paid the medical bills, so absences were attributable to illness and were lawful.

p. 7
02

Procedural fairness under Sections 41 and 45 of the Employment Act 2007

Holding

Procedure was unfair; the Grievant was never heard before a disciplinary forum and was given only general accusations

Reasoning

The show-cause letter contained general accusations without specific dates of lateness or absence or particulars of negligence. No disciplinary session was convened. The employer proceeded while the Grievant was ill and undergoing surgery, and there was no record of an appeal hearing, breaching natural justice and the CBA.

p. 7
03

Remedy: reinstatement versus compensation

Holding

Reinstatement declined as impracticable after 6 years; 10 months' gross salary awarded as compensation instead

Reasoning

Though the Grievant preferred reinstatement and the Conciliator recommended it, six years had passed. Employment relationships are dynamic, and it would be difficult to reconstruct mutual trust and confidence. Section 49 compensation of 10 months' gross salary at Kshs. 43,069 was granted instead.

p. 8
04

Expired warnings under the CBA

Holding

Past warnings dating back to 1995 had expired under the CBA's warning system and could not justify termination

Reasoning

The CBA clause 26 prescribed validity periods for warnings (6 months for the first, 9 months for the second and third). The employer could not explain why warnings from 1995 remained relevant, and it was not shown that numbered first, second and third warnings were issued before termination.

p. 4

Legal principles established

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  • An employer alleging negligence must provide details of the omission or commission comprising the offence; general allegations do not establish a valid reason for termination
  • Warning letters that have expired under a CBA warning system cannot justify subsequent disciplinary action
  • Section 41 of the Employment Act requires the employee be given specific charges to enable a proper response
  • Reinstatement is not a suitable remedy where long periods have lapsed since termination
  • Where an employer relies on lateness/absenteeism records it must produce them to establish the ground

Court orders

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  1. 1.Declaration that termination was unfair both on substantive and procedural grounds
  2. 2.Respondent to pay the Grievant 10 months' gross salary as compensation for unfair termination, calculated at Kshs. 430,690, within 30 days of delivery of the Award
  3. 3.Respondent to pay the Grievant salary up to and including 28th July 2008, three and a quarter months' basic salary in lieu of notice, and annual leave pay of 73 days, as offered in the letter of termination dated 24th July 2008
  4. 4.No order on the costs and interest

Authorities

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Legislation

  • Employment Act 2007Sections 41, 43, 44(4), 45, 49, 30
  • Labour Institutions Act 2007Sections 12, 15
  • Industrial Court Act 2011three-year limit on reinstatement
  • Employment Act Cap 226definition of gross misconduct
Jurisdiction invoked
Employment Act 2007 and Labour Institutions Act 2007, Industrial Court jurisdiction over unfair termination disputes

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Electrical Trades & Allied Workers Union v Kenya Power & Lighting Company Limited [2014] KEELRC 244 (KLR)", Case Analysis (2014). Cause Number 782 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/244/eng@2014-09-18

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