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ELRCPartially AllowedCause No. 74 of 2013· [2014] KEELRC 813 (KLR)

Kenya Union Of Commercial Food And Allied Workers v Meru North Farmers Sacco Limited [2014] KEELRC 813 (KLR)

Industrial Court of Kenya
18 February 2014
MMM. Mbaru
3,320 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's employment court ruled that dismissing a unionised worker without a union representative at the hearing is unfair, even where the employee's misconduct was serious.

What this practically means

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Executive summary

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The claimant union, acting for its member Stanley Kathiari Muketha (the grievant), sued Meru North Farmers Sacco Limited for unfair dismissal. The grievant, employed from 1991/1992 and serving for about 22 years, was working as a Teller at Maua Branch on 31st May 2011 when a cash shortage of Kshs.10,000 was discovered during verification. He raised a withdrawal voucher and paid the shortage rather than declaring it, was interdicted on 24th June 2011 and summarily dismissed on 18th November 2011 after a hearing before the Staff Development Committee. The respondent defended the dismissal as justified gross misconduct, citing the grievant's 46 prior disciplinary complaints, dishonest handling of funds, and failure to account for customer monies. The court framed three issues: whether the union had a cause, whether the termination was unfair, and what remedies applied. It held that under section 41 of the Employment Act, a unionised employee's disciplinary hearing must be attended by a shop floor union representative; a mere copied notice to the union was insufficient, and the union was simply ignored. The termination was therefore procedurally unfair notwithstanding the grievant's poor record. Reinstatement was refused because the grievant contributed to his termination, was not remorseful and had not evidenced repayment of the shortage. The court awarded compensation of one month's salary under section 49(4)(m) and ordered each party to bear their own costs.

Key legal issues

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01

Whether the union had a cause of action on behalf of the grievant

Holding

Yes - the union had a Recognition Agreement and CBA with the respondent and was entitled to represent the grievant and be involved in the disciplinary process

Reasoning

The court held that a Recognition Agreement gives a union the right to have workplace disputes addressed in the presence of a union representative. Section 41 of the Employment Act requires that where an employee is unionised, the hearing before termination must involve the shop floor union representative. A mere copied notice to the union was insufficient; the union was entitled to be present at the hearing itself.

p. 4
02

Whether the termination of the grievant was unfair

Holding

The termination was procedurally unfair because the respondent failed to involve the union or allow a fellow employee of the grievant's choice at the hearing

Reasoning

Although the grievant had 46 prior disciplinary complaints and misconduct that could have warranted summary dismissal under section 44, the respondent did not comply with section 41. It neither pleaded that it alerted the union nor that the union was informed and failed to attend. Only a copied notice was given. The court found this an unfair labour practice rendering the dismissal procedurally unfair.

p. 5
03

What remedies were available

Holding

Reinstatement refused; compensation equivalent to one month's pay awarded under section 49(4)(m)

Reasoning

The grievant contributed to his termination through his long record of misconduct and dishonesty over funds in his custody. He was not remorseful and produced no evidence of repaying the Kshs.10,000 shortage despite claiming he had paid. Reinstatement was inappropriate, but as the termination was procedurally unfair, the court exercised its discretion under section 49(4)(m) to award compensation of one month's pay.

p. 5

Legal principles established

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  • Where an employee is unionised, any hearing before termination must be conducted in the presence of the shop floor union representative, as mandated by section 41 of the Employment Act
  • Section 41 of the Employment Act is mandatory; failure to accord the employee a hearing in the presence of a union representative renders the termination unfair

Court orders

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  1. 1.Declaration that the termination of the grievant was procedurally unfair
  2. 2.Award of one month salary as of 18th November 2011 to the grievant
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Employment Actsection 2
  • Employment Actsection 41(1)
  • Employment Actsection 42(1)
  • Employment Actsection 44
  • Employment Actsection 45
  • Employment Actsection 49
  • Employment Actsection 49(4)(m)
Jurisdiction invoked
Employment and Labour Relations jurisdiction over unfair termination claims under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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 Union Of Commercial Food And Allied Workers v Meru North Farmers Sacco Limited [2014] KEELRC 813 (KLR)", Case Analysis (2014). Cause No. 74 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/813/eng@2014-02-18

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