Kenya Union of Commercial Food and Allied Workers v Tusker Mattresses Limited [2016] KEELRC 261 (KLR)
The bottom line
#Tusker Mattresses' employee lost his unfair dismissal claim because he got a fair hearing, but still won his notice pay, gratuity and leave dues.
What this practically means
#Executive summary
#Key legal issues
#Whether there was a valid reason for the termination under Section 43 of the Employment Act
The Respondent had a valid reason for terminating the Grievant's employment; the Grievant was confronted with all the allegations that led to termination and admitted leaving the branch without permission.
The court examined the termination letter and Disciplinary Committee proceedings. Although not all allegations in the termination letter appeared in the show cause letter, the disciplinary record showed the Grievant was confronted with all of them. Union representatives were aware of his volatile temperament, and he admitted leaving the branch without permission. Objectively, a reasonable employer would have acted similarly.
Whether the termination procedure was fair under Section 41 of the Employment Act
The termination was procedurally fair; the Grievant was issued a show cause letter, responded to it, and appeared before a Disciplinary Committee accompanied by two shop stewards.
The court noted the Grievant received and answered a show cause letter, attended the Disciplinary Committee hearing on 16th April 2013 accompanied by union representatives John Kinyanjui and Samson Omechi, and was accorded an opportunity to be heard, satisfying the requirements of Section 41.
Whether the terminal benefits claimed (notice pay, gratuity, leave pay) were payable
The Grievant was entitled to notice pay and gratuity because his exit was treated as a termination rather than a dismissal, and the leave pay claim succeeded for want of leave records from the Respondent.
The Respondent's own conduct, confirmed in submissions, showed the exit was a termination, entitling the Grievant to notice and gratuity under the CBA. The Respondent produced no leave records to rebut the leave claim. Judgment was entered for Kshs. 241,084 after deducting amounts already paid.
Legal principles established
#- An employer terminating employment must show a valid reason, assessed objectively against what a reasonable employer would have done
- Where an employee's exit is treated as a termination rather than a summary dismissal, the employee is entitled to notice pay and gratuity under the applicable CBA
- An employer who alleges leave has been taken must produce leave records; absent such records, a claim for unpaid leave pay succeeds
Court orders
#- 1.Dismissal of the claim for compensation for unlawful and unfair termination and the prayer for reinstatement
- 2.Judgment in favour of the Grievant for 2 months' salary in lieu of notice (Kshs. 53,758), service gratuity for 12 years (Kshs. 215,032) and 23 days' annual leave (Kshs. 20,607), less Kshs. 48,313 already paid as gratuity and leave pay, amounting to Kshs. 241,084
- 3.Interest on the judgment amount at court rates from the date of judgment until payment in full
- 4.Each party to bear its own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over trade disputes under the Employment Act, 2007 and the applicable Collective Bargaining Agreement/Recognition Agreement
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial Food and Allied Workers v Tusker Mattresses Limited [2016] KEELRC 261 (KLR)", Case Analysis (2016). Memorandum of Claim dated 19th June 2014, filed 2nd July 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/261/eng@2016-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.