Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 211 of 2013· [2015] KEELRC 450 (KLR)

Kenya Shoe And Leather Workers Union v Fast Track Management Consultants Limited [2015] KEELRC 450 (KLR)

Employment and Labour Relations Court of Kenya
21 September 2015
MMM. Mbaru
2,474 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan court upheld a worker's summary dismissal for lateness and insubordination but ordered the employer to pay for untaken leave days.

What this practically means

#

Executive summary

#
The Kenya Shoe and Leather Workers Union sued on behalf of grievant Daniel Mburu, a binding/machine operator employed by Fast Track Management Consultants Limited from 2004 and posted to Bata Shoe Company, alleging unlawful termination on 13th September 2012 without hearing, contrary to section 41 of the Employment Act and Article 50 of the Constitution. The union sought reinstatement or, alternatively, notice pay, 63 days' leave pay, service gratuity, compensation and a certificate of service. The respondent defended the termination as justified by persistent lateness and absconding duty in refusal of a lawful instruction to work overtime, relying on three warning letters and section 44 of the Employment Act on gross misconduct. The Grievant admitted under oath he was late and left the premises rather than work overtime because the general manager had not conveyed the direction in writing. The court found these admissions established justified termination, rejecting the 'lame excuse' of absence of a written instruction and holding that cumulative lateness cannot be excused by pointing at other employees. Summary dismissal under section 44(4) was found warranted. Reinstatement, notice pay, gratuity (no collective agreement proved) and compensation were all declined. However, the employer produced no proof that leave was taken or paid, so the court awarded the Grievant Kshs. 23,940.00 for 63 untaken leave days. The claim was otherwise dismissed with each party bearing its own costs. Judgment was delivered on 21st September 2015 by M. Mbaru, Judge.

Key legal issues

#
01

Justification for termination

Holding

The termination was justified; the Grievant's own admissions under oath established lateness and refusal to work overtime as directed

Reasoning

The Grievant admitted under oath he was late and refused to work overtime as directed by a manager. His explanation - absence of a written request from the general manager and fear of trespass - was rejected as a lame excuse. Cumulative lateness of 5 minutes on several occasions adds up to lost work time in a time-sensitive industry, and insubordination warranted the termination.

p. 4
02

Leave pay

Holding

The Grievant was awarded Kshs. 23,940.00 for 63 leave days earned but not taken

Reasoning

The employer asserted leave was taken each August but produced no evidence. Where leave has been earned, not taken, and there is no proof of payment, the entitlement survives a finding that the termination was fair.

p. 4

Legal principles established

#
  • Summary dismissal is permitted where an employee absents himself from work without lawful cause or wilfully neglects his duties, under section 44(4) of the Employment Act, but section 41 procedural fairness must precede such action
  • Earned but untaken leave is a right that does not abate even where the termination is found fair and justified

Court orders

#
  1. 1.The claim is dismissed save that the Grievant is awarded Kshs. 23,940.00 for 63 leave days not taken
  2. 2.Each party shall bear their own costs

Authorities

#

Legislation

  • Constitution of KenyaArticle 50
  • Employment ActSection 41
  • Employment ActSection 44(4) (a) and (c)
  • Employment ActSection 45(4)

Cases cited (1)

  • Ann Njoroge versus Topez Petroleum Limited
    Cause No. 1248 of 2012
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance reference following a ministerial conciliation certificate)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (11)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Kenya Shoe And Leather Workers Union v Fast Track Management Consultants Limited [2015] KEELRC 450 (KLR)", Case Analysis (2015). Cause No. 211 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/450/eng@2015-09-21

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