Kenya Shoe and Leather Workers Union v Bata Shoe Company (K) Limited [2016] KEELRC 84 (KLR)
The bottom line
#A Kenyan court awarded a Bata employee over Kshs. 645,000 after finding his dismissal for alleged drunkenness was unfair because the company never actually tested for alcohol.
What this practically means
#Executive summary
#Key legal issues
#Effective date of employment
Effective date adopted as 4th January 1997 as pleaded by the Claimant, the Respondent having suppressed evidence
The Respondent could not explain a pay slip in the Grievant's name predating the claimed 1st September 2012 fixed-term contract, a pay slip that carried union and Sacco deductions. The first witness could not say when the Grievant entered employment. In the absence of any explanation, the Court concluded evidence was intentionally suppressed and invoked Section 10(7) of the Employment Act to adopt the pleaded date of 4th January 1997.
Validity of the reason for dismissal (reporting to work drunk)
No valid reason established; the Respondent failed to conduct a clinical examination to confirm intoxication
The dismissal was based on clinical observation of staggering gait and excitement. The clinic witness confirmed the Grievant was under treatment for hypertension and that his blood pressure and heart rate were critically high on the material date, yet no test for alcohol content was done. The Court weighed the allegations against the Grievant's hypertension explanation and found the employer failed to establish the cause of his presentation, hence no valid reason for dismissal.
Procedural fairness
Procedural fairness under Section 41 of the Employment Act was not met
Apart from recorded statements by the Grievant and the Respondent's witnesses, there was no evidence that the Grievant was subjected to the mandatory procedural fairness requirements of Section 41, such as being accompanied by a fellow employee or representative at a disciplinary hearing. The dismissal was therefore both substantively and procedurally unfair.
Remedies
Twelve months' salary in compensation, two months' salary in lieu of notice per CBA, and service pay for 15 years awarded
The Court exercised discretion to award the maximum twelve months' compensation, taking into account the Grievant's length of service and the Respondent's conduct in the disciplinary process. Notice pay followed the CBA, and service pay was computed at 21 days' pay for 15 years. Claims for prorata leave, leave travelling allowance, days worked and overtime were settled during trial.
Legal principles established
#- Where an employer suppresses evidence on the effective date of employment, the court may adopt the date pleaded by the employee under Section 10(7) of the Employment Act, 2007
- An employer must establish a valid reason for dismissal through proper clinical or factual examination, not mere observation
- A dismissal must satisfy both substantive validity of reason and procedural fairness under Section 41 of the Employment Act
Court orders
#- 1.Judgment for the Grievant of Kshs. 645,232 comprising 12 months' salary in compensation (Kshs. 316,032), 2 months' salary in lieu of notice as per CBA (Kshs. 52,672) and service pay for 15 years (Kshs. 276,528)
- 2.Interest at court rates on the decretal amount from the date of judgment until payment in full
- 3.Respondent directed to issue the Grievant with a certificate of service
- 4.Respondent to pay the costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (trade dispute arising from summary dismissal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Shoe and Leather Workers Union v Bata Shoe Company (K) Limited [2016] KEELRC 84 (KLR)", Case Analysis (2016). Not stated in judgment (Memorandum of Claim dated 20th February 2014, filed 21st February 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/84/eng@2016-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.