Kenya Chemical & Allied Workers Union v Botanical Extracts (EPZ) Limited (Cause 2116 of 2012) (Employment and Labour) [2015] KEELRC 332 (KLR)
The bottom line
#A Kenyan court ruled workers fired for desertion without a hearing were unfairly dismissed and are owed compensation, even years later.
What this practically means
#Executive summary
#Key legal issues
#Whether termination on grounds of desertion was procedurally and substantively fair
The termination was unfair: the Respondent did not give the Grievants a hearing after the alleged desertion, did not call any witnesses, and did not adduce evidence to rebut the allegations of lack of procedural fairness
The Claimant submitted that the Grievants were never given an opportunity to be heard as required by Section 41 and that no charges were proved under Section 43. The Respondent did not adduce any evidence in rebuttal, did not call any witness, and its exhibits related to a different person (Hillary Waithaka). The Respondent did not deny that no hearing was given. The court therefore held that the terminations failed both the procedural and substantive tests under Sections 41, 43 and 45 of the Employment Act and were unfair.
Whether reinstatement or re-engagement was available as a remedy
Neither reinstatement nor re-engagement was ordered; terminal benefits and compensation were awarded instead
More than three years had passed since termination, making reinstatement unavailable. Re-engagement was refused because the Respondent was operating at reduced capacity due to raw material shortages and had contemplated declaring 50 employees redundant, and the Claimant did not show the situation had improved. The only viable remedies were terminal benefits and compensation, and the court adopted the Conciliator's accepted recommendations.
Claimant's locus standi absent a recognition agreement
Raised by the Respondent in its Memorandum of Defence but not resolved against the Claimant in the judgment
The Respondent objected to the Claimant's locus standi on the ground that there was no recognition agreement between the parties. The judgment records this objection but does not contain any finding or determination on it, proceeding instead to determine the Grievants' claims on the merits. The objection was therefore neither upheld nor expressly rejected in the reasoning reproduced.
Legal principles established
#- Termination without a hearing and without proof of the alleged charges fails the substantive and procedural fairness tests under Sections 41, 43 and 45 of the Employment Act and is unfair
- An employer may dismiss summarily an employee who, without leave or other lawful cause, absents himself from the place appointed for the performance of his work (Section 44(4)(a)), as submitted by the Respondent
Court orders
#- 1.Adoption of the Conciliator's recommendations: notice pay, accrued leave pay, overtime worked if any, wages for days worked, and 6 months compensation for each Grievant
- 2.Each Grievant entitled to salary for the month of May 2009
- 3.Parties directed to work out the actual sums involved and return to court within 2 weeks from the date of judgment to record consent on the amount due in respect of each Grievant
- 4.No orders for costs
- Jurisdiction invoked
- Employment Act, 2007 (Sections 41, 43, 44(4)(a) and 45); Industrial Court jurisdiction over employment disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Chemical & Allied Workers Union v Botanical Extracts (EPZ) Limited (Cause 2116 of 2012) (Employment and Labour) [2015] KEELRC 332 (KLR)", Case Analysis (2015). Cause No. 1519 of 2012 (Memorandum of Claim filed 18th October 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/332/eng@2015-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.