Kenya Plantation & Agricultural Workers Union v Unilever Tea Kenya Limited [2015] KEELRC 91 (KLR)

The evidence showed a disciplinary meeting was held but the grievant, though present, requested to be excused due to ill health and was instead ordered to sit, then sent outside, and handed a dismissal letter after the meeting had ended. The court found the evidence replete with hostility and indignity and concluded there was pre-determination. The respondent did not contradict the grievant's evidence, and the failure to follow fair procedure under sections 41 and 45 of the Employment Act vitiates the termination.

The respondent relied on section 43(2) of the Employment Act and the court's own decision in Bernard Shisiali Muhatia v Speedex Logistics Ltd to submit the burden is on a balance of probabilities. The court agreed, noting the parties' evidence was largely word against word, so the balance of probabilities and preponderance of evidence test applied. On that test the respondent failed to displace the grievant's account of a procedurally flawed process.

RW1's evidence rested on statements that children at the scene said the grievant broke the window, against a backdrop of a romantic relationship between the grievant and a fellow employee. The court observed that workplace relationships test an employer's maturity and that management missteps produce hazardous results. The managerial prerogative jurisprudence relied on by the respondent was held not relevant in the circumstances.

The court held that on a positive test for unlawful termination the claimant is entitled to relief. It exercised its discretion to reinstate the grievant without loss of benefits and ordered her to report to work the following day, and additionally awarded twelve months' salary (Kshs. 111,072.00), payment for untaken leave, and return of household goods withheld at eviction. Costs were however not awarded against the respondent.