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ELRCPartially AllowedNot stated in judgment (Memorandum of Claim dated 20th February 2014, filed 21st February 2014)· [2016] KEELRC 84 (KLR)

Kenya Shoe and Leather Workers Union v Bata Shoe Company (K) Limited [2016] KEELRC 84 (KLR)

Employment and Labour Relations Court
16 December 2016
1,448 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, Kenya Shoe and Leather Workers Union, sued on behalf of its member, John Omondi Owuor (the Grievant), challenging his summary dismissal by Bata Shoe Company (K) Ltd on 11th December 2012 for allegedly reporting to work drunk. The Respondent contended the Grievant was first employed on a four-month fixed-term contract from 1st September 2012, while the Claimant pleaded employment from 4th January 1997. The Court framed three issues: the effective date of employment, the lawfulness and fairness of the dismissal, and the remedies due. On the first issue, the Respondent could not explain a pay slip predating its stated commencement date, and the Court invoked Section 10(7) of the Employment Act, 2007, adopting 4th January 1997 as the effective date. On the dismissal, the Court found the employer relied only on clinical observation of staggering and excitement, without any test for alcohol content, while the clinic witness confirmed the Grievant's blood pressure and heart rate were critically high that day and that he was under treatment for hypertension. The Court held the Respondent failed to establish a valid reason and also failed the mandatory procedural fairness requirements of Section 41. The dismissal was found both substantively and procedurally unfair. The Court awarded the Grievant twelve months' salary in compensation, two months' salary in lieu of notice per the CBA, and service pay for 15 years, totalling Kshs. 645,232, with interest at court rates from the date of judgment. Claims for prorata leave, leave travelling allowance, days worked and overtime were settled at trial. Reinstatement was not granted; a certificate of service was ordered, plus costs to the Grievant.

Key legal issues

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01

Effective date of employment

Holding

Effective date adopted as 4th January 1997 as pleaded by the Claimant, the Respondent having suppressed evidence

Reasoning

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.

p. 2
02

Validity of the reason for dismissal (reporting to work drunk)

Holding

No valid reason established; the Respondent failed to conduct a clinical examination to confirm intoxication

Reasoning

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.

p. 4
03

Procedural fairness

Holding

Procedural fairness under Section 41 of the Employment Act was not met

Reasoning

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.

p. 4
04

Remedies

Holding

Twelve months' salary in compensation, two months' salary in lieu of notice per CBA, and service pay for 15 years awarded

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.Interest at court rates on the decretal amount from the date of judgment until payment in full
  3. 3.Respondent directed to issue the Grievant with a certificate of service
  4. 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

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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 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.