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ELRCPartially AllowedNot stated in the judgment text supplied· [2015] KEELRC 479 (KLR)

Kenya Building, Construction, Timber Furniture & Allied Industiries Employees Union v Westcon Contractors (K) Limited [2015] KEELRC 479 (KLR)

Employment and Labour Relations Court
2 October 2015
OMOnesmus Makau
661 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan bakery was ordered to pay two former workers over Ksh 350,000 because it never showed up to justify their dismissal.

What this practically means

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Executive summary

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The claimant union sued on behalf of two grievants, Bernard Ondieki Osoro and Jackson Kahindi Kiyuge, seeking terminal benefits and compensation for their dismissal by the respondent on 12 March 2012. The respondent filed no defence and took no part in the proceedings despite service. At the hearing, claimant's counsel relied on the labour officer's conciliation report, which had made findings in favour of the grievants, together with written submissions. The court found the grievants' employment undisputed and, in the absence of any defence or evidence, held the claim uncontroverted and proven on a balance of probability. Applying Section 45 of the Employment Act, the court held the employer bears the burden of proving a fair and valid reason for dismissal and a fair procedure, a burden the respondent never attempted to discharge. The termination was declared unfair and unlawful. On reliefs, the court adopted the labour officer's award with alterations: six months' salary as compensation, two months' salary in lieu of notice under CBA clause 18, and outstanding leave limited to the two years from March 2011 to March 2013 by the three-year limitation bar in Section 90. Claims for underpayment, house allowance and severance pay were declined for want of substantiation or redundancy. Judgment was entered for the claimants in the aggregated sum of Ksh 351,024, plus costs and interest, delivered at Mombasa on 2 October 2015 by Onesmus Makau J.

Key legal issues

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01

Whether the grievants' termination was unfair and unlawful

Holding

Termination was unfair and unlawful; the employer bore but never discharged the Section 45 burden, having filed no defence.

Reasoning

The grievants' employment up to 12.3.2012 was undisputed. No defence or evidence was tendered by the respondent, so the claim was uncontroverted and stands proven on a balance of probability. Under Section 45 of the Employment Act, the employer must prove a valid and fair reason and fair procedure, which it never attempted to do. The claimant relied on the labour officer's conciliation report favouring the grievants.

p. 1
02

Quantum of reliefs

Holding

Award mirrors the labour officer's report with alterations: 6 months' salary compensation, two months' notice pay per CBA clause 18, and leave for March 2011 to March 2013 only, limited by Section 90.

Reasoning

The court adopted the county labour officer's findings since no further evidence was tendered before it. Compensation of 6 months' salary was granted considering the likelihood of earlier alternative employment. Notice pay followed CBA clause 18. Leave was limited to two years owing to the three-year limitation bar in Section 90. Underpayment, house allowance and severance claims failed for want of substantiation or redundancy.

p. 2

Legal principles established

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  • The burden of proving that there existed a fair and valid reason for dismissal and that a fair procedure was followed rests with the employer under Section 45 of the Employment Act.
  • Uncontroverted evidence stands proven on a balance of probability where no defence is filed.
  • Claims under the Employment Act are limited to three years by Section 90.

Court orders

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  1. 1.Declaration that the termination of the grievants' employment was unfair and unlawful
  2. 2.Award to each grievant of salary in lieu of notice, outstanding leave pay and 6 months' salary as compensation for unfair termination per the tabulated award
  3. 3.Bernard Ondieki Osoro: Ksh 208,456; Jackson Kahindi Kiyuge: Ksh 142,568; aggregated Ksh 351,024
  4. 4.Costs and interest on the award to the claimants

Authorities

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Legislation

  • Employment ActSection 45
  • Employment ActSection 90
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes, incl. Section 45 and Section 90 of the Employment Act

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 Building, Construction, Timber Furniture & Allied Industiries Employees Union v Westcon Contractors (K) Limited [2015] KEELRC 479 (KLR)", Case Analysis (2015). Not stated in the judgment text supplied. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/479/eng@2015-10-02

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