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ELRCPartially AllowedCause dated 22nd July, 2014 (memorandum of claim filed 22nd July, 2014)· [2015] KEELRC 91 (KLR)

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

Industrial Court (Employment and Labour Relations Court) of Kenya
14 December 2015
3,051 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court reinstated a pregnant worker it found was unfairly fired without a fair hearing, awarding her twelve months' salary.

What this practically means

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Executive summary

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The claimant union brought a memorandum of claim dated 22nd July, 2014 on behalf of the grievant, Bethseba Kerubo, a general worker employed on 13th April, 2012 at Kshs. 9,256.00 per month, alleging wrongful, unlawful and unfair dismissal on 31st October, 2012 on allegations of absenteeism and destruction of the respondent's property. The grievant's account was that she was subjected to a hostile disciplinary process while pregnant and unwell: she was ordered to sit at a disciplinary meeting despite protesting ill health, then excused and handed a dismissal letter after the meeting had ended, and later evicted from residential premises. The respondent defended the dismissal as summary dismissal for gross misconduct under section 44 of the Employment Act, relying on the managerial prerogative jurisprudence. The court framed three issues: whether the termination was wrongful, unfair and unlawful; entitlement to relief; and costs. It held the claim was to be decided on a balance of probabilities, found the respondent had not contradicted the grievant's evidence, and concluded there was pre-determination and no consideration of fair procedure, contrary to sections 41 and 45 of the Employment Act. The respondent's authorities on managerial prerogative were held not relevant in the circumstances. The claim was allowed: the grievant was reinstated without loss of benefits and ordered to report to work on 15th December, 2015; the respondent was ordered to pay twelve months' salary as compensation (Kshs. 111,072.00), pay for untaken leave, and return the grievant's household goods withheld at eviction. However, each party was ordered to bear its own costs, the court remarking that the relationship must not be torn apart.

Key legal issues

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01

Whether the termination of the grievant's employment was wrongful, unfair and unlawful

Holding

The termination was wrongful, unfair and unlawful because the disciplinary process lacked procedural fairness; the grievant was pre-determined despite her pregnancy and illness and denied proper participation and representation.

Reasoning

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.

p. 3
02

Standard of proof applicable to the validity of the termination

Holding

The claim is decided on a balance of probabilities, not beyond reasonable doubt.

Reasoning

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.

p. 5
03

Whether the respondent's reliance on summary dismissal under section 44 for absenteeism and destruction of property succeeded

Holding

The respondent's submissions were apt and logical but fell short of the circumstances of the case; the defence evidence on destruction of property did not tilt the case in the respondent's favour.

Reasoning

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.

p. 5
04

Entitlement to relief following a finding of unfair termination

Holding

Having positively found unfair termination, the court granted reinstatement, twelve months' salary as compensation, leave pay and return of household goods.

Reasoning

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.

p. 6

Legal principles established

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  • Failure to accord an employee procedural fairness in disciplinary proceedings, including the rights under section 41 of the Employment Act, vitiates the termination as wrongful, unfair and unlawful.
  • Unfair termination claims are decided on a balance of probabilities.

Court orders

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  1. 1.That the grievant, Bethseba Kerubo be and is hereby reinstated to employment without loss of benefits, promotion or emoluments.
  2. 2.That the grievant be and is hereby ordered to report to work tomorrow, 15th December, 2015 at 800 hours.
  3. 3.That the respondent be and is hereby ordered to pay the claimant twelve (12) months salary as compensation for economic loss due to unlawful termination of employment; that is Kshs.9256 x 12months = Kshs. 111.072.00.
  4. 4.The respondent be and is hereby ordered to pay the grievant for all leave untaken at the time of termination.
  5. 5.The respondent be and is hereby ordered to return to the grievant all household goods and other property withheld at the time of eviction from her living quarters.
  6. 6.That each party shall bear its own costs of this cause.

Authorities

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Legislation

  • Employment Act, 2007section 44(3)
  • Employment Act, 2007section 44(4)(a) and (g)
  • Employment Act, 2007section 43(2)
  • Employment Act, 2007section 41(1) and (2)
  • Employment Act, 2007section 45(1)
  • CBAclause 24 (a) and (g)

Cases cited (7)

  • Bernard Shisiali Muhatia v Speedex Logistics Ltd
    (2013)
  • Dock Workers Union v Kenya Ports Authority
    (2015) eKLR
  • Miguna Miguna v Permanent Secretary, Office of the Prime Minister
  • Samuel Muchiri Gikonyo v Henkel Chemicals Limited
  • Professor Gitile G. Naituli v The University Council, Multimedia University College of Kenya & Another
    Cause Number 1200 of 2012
  • Kenya Game Hunting and Safaris Workers Union v Lewa Wildlife Conservancy Limited
    Cause Number 1567 of 2011
  • Fredrick Saundu Amolo Vs. Principal Namanga Mixed Day Secondary School & 2 Others
    (2014) eKLR
Jurisdiction invoked
Employment Act, 2007 (sections 41, 43, 44, 45) - Industrial Court first-instance jurisdiction over a memorandum of claim for unfair termination

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 & Agricultural Workers Union v Unilever Tea Kenya Limited [2015] KEELRC 91 (KLR)", Case Analysis (2015). Cause dated 22nd July, 2014 (memorandum of claim filed 22nd July, 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/91/eng@2015-12-14

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