Kenya Chemical & Allied Workers Union v Noble Gases Limited [2015] KEELRC 369 (KLR)
The bottom line
#Noble Gases was ordered to pay four dismissed workers up to 12 months' salary because it fired them before their show-cause response deadline expired.
What this practically means
#Executive summary
#Key legal issues
#Whether there were valid reasons to warrant dismissal of the Grievants
No valid reason existed; the dismissals were linked to the Grievants' union recruitment activities and the employer acted before the 3 days in the show cause letters had expired.
The dismissal letters alleged incitement of other employees, but the show cause letters of 8th March 2011 gave the Grievants three days to respond, and the dismissals of 9th March 2011 preceded the expiry of that period. The court also noted the employer's failure to respond to check-off forms and its refusal to attend conciliation, from which it inferred there was no valid reason for dismissal.
Whether due process was followed before the Grievants were dismissed
Due process was ignored; Section 44 of the Employment Act on summary dismissal could not apply absent a valid reason.
The respondent relied on Section 44(4) of the Employment Act 2007, alleging failure to obey a lawful order. The court held that summary dismissal provisions could not assist the employer once it had found no valid reason existed. The respondent's allegation that Owende's contract had expired was unsupported by any documentary proof, so it remained unproved.
What remedies to give in the circumstances
Summary dismissal converted to normal termination; each Grievant awarded one month's salary in lieu of notice, twelve months' salary as compensation for unlawful termination, salary for nine days worked in March 2011, less statutory deductions, plus certificates of service.
Having found the dismissals unfair and unjustified, the court exercised its remedial discretion by converting the summary dismissals to normal terminations. It quantified awards per Grievant based on their respective salaries, granting notice pay, the maximum twelve months' compensation, and pay for nine days worked in March 2011, subject to statutory deductions, with certificates of service for each Grievant.
Legal principles established
#- A dismissal is unjustified where the employer acts before the period given in a show cause letter has expired, and due process under Section 44 of the Employment Act cannot cure the absence of a valid reason.
- An employer who declines to attend conciliation while asserting a valid reason for dismissal invites an adverse inference.
- An employer alleging that an employee was on a lapsed or expired contract bears the burden of producing that contract, failing which the averment is unproved.
Court orders
#- 1.Summary dismissal of the four Grievants converted to normal termination
- 2.Award to Janet Mutinda Mutiso of Kshs. 160,154/- less statutory deductions (1 month notice, 12 months compensation, 9 days salary)
- 3.Award to Enos Ohoa Ogwang of Kshs. 266,925/- less statutory deductions
- 4.Award to Lawrence Mwangi of Kshs. 160,154/- less statutory deductions
- 5.Award to Ouma Owende of Kshs. 114,419/- less statutory deductions
- 6.Each Grievant to be issued with a Certificate of Service
- 7.Respondents to pay costs of the suit
- Jurisdiction invoked
- Original jurisdiction of the Industrial Court (now Employment and Labour Relations Court) over the trade dispute reported under Section 62(1) of the Labour Relations Act 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Chemical & Allied Workers Union v Noble Gases Limited [2015] KEELRC 369 (KLR)", Case Analysis (2015). Cause No. 1179 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/369/eng@2015-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.