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ELRCPartially AllowedMemorandum of Claim dated 19th June 2014, filed 2nd July 2014· [2016] KEELRC 261 (KLR)

Kenya Union of Commercial Food and Allied Workers v Tusker Mattresses Limited [2016] KEELRC 261 (KLR)

Employment and Labour Relations Court
4 November 2016
1,504 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant Union sued on behalf of its member, Samwel Gitau Mbucha, an Assistant Supervisor at Tusker Mattresses Limited's Daima Branch terminated with effect from 30th April 2013 following a disciplinary hearing over insubordination allegations. The Union sought reinstatement or, alternatively, notice pay, leave pay, service gratuity and twelve months' compensation for unfair termination. The Respondent filed a Statement of Response but did not attend the hearing despite due service. The court framed two issues: whether the termination was lawful and fair, and whether the remedies were merited. Applying Section 43 of the Employment Act, the court asked whether the reason would have moved a reasonable employer to act similarly, and found that the Grievant had been confronted with all the allegations in the Disciplinary Committee proceedings and that the Respondent had a valid reason. On procedure, the court found the Grievant was taken through a disciplinary process within the parameters of Section 41, accompanied by two shop stewards, and that the termination was procedurally fair. The claim for compensation for unfair termination was dismissed. However, since the Respondent treated the exit as a termination rather than a dismissal, the Grievant was entitled to notice pay and gratuity under the applicable Collective Bargaining Agreement; and as the Respondent produced no leave records, the leave pay claim succeeded. Judgment was entered for Kshs. 241,084 (after deductions of Kshs. 48,313 already paid), with interest at court rates from the date of judgment until payment in full. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether there was a valid reason for the termination under Section 43 of the Employment Act

Holding

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.

Reasoning

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.

p. 4
02

Whether the termination procedure was fair under Section 41 of the Employment Act

Holding

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.

Reasoning

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.

p. 4
03

Whether the terminal benefits claimed (notice pay, gratuity, leave pay) were payable

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Dismissal of the claim for compensation for unlawful and unfair termination and the prayer for reinstatement
  2. 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. 3.Interest on the judgment amount at court rates from the date of judgment until payment in full
  4. 4.Each party to bear its own costs

Authorities

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Legislation

  • Employment ActSection 43
  • Employment ActSection 41
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

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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 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.