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ELRCPartially AllowedMemorandum of Claim dated 22nd July, 2014· [2016] KEELRC 378 (KLR)

Kenya Plantation & Agricultural Workers Union v Sotik Tea Highlands Estate [2016] KEELRC 378 (KLR)

Employment and Labour Relations Court
14 November 2016
DMD.K.Njagi Marete
2,209 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya Breweries' worker was wrongly dismissed because the company couldn't prove he got proper notice and a fair hearing; the court ordered him reinstated.

What this practically means

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Executive summary

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The Claimant, a general worker employed on 20th September, 2002 without a written appointment letter, was summarily dismissed on 26th July, 2013 following events surrounding a KRA training on 23rd July, 2013, which the Respondent characterised as disobedience of lawful instructions. The Claimant alleged the dismissal was draconian, unfair, unlawful and punitive of his trade union activity, and sought reinstatement with full back pay, or in the alternative gratuity, house allowance, twelve months' salary, leave pay, notice pay, return of withheld household goods and damages. The Respondent maintained that a disciplinary hearing was held, that the grievant was heard with shop stewards present, and that his appeal was dismissed. The court framed three issues: wrongfulness of the termination, entitlement to relief, and costs. Adopting the balance of probabilities standard, the court found the Respondent had failed to demonstrate substantive and procedural fairness under sections 41 and 42 of the Employment Act: there was no proof of adequate notice of the disciplinary proceedings or appeal, no evidence of the right to a hearing or proper representation by shop stewards of the grievant's choice, and the Claimant's case was uncontroverted. The termination was held wrongful, unfair and unlawful. The court allowed the claim, ordering unconditional reinstatement with a reporting date of 15th November, 2016, return of the grievant's household and personal effects, and each party to bear its own costs.

Key legal issues

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01

Whether the termination of the Claimant's employment was wrongful, unfair and unlawful

Holding

The termination was wrongful, unfair and unlawful because the Respondent failed to demonstrate substantive and procedural fairness, proper notice of the disciplinary proceedings, or the grievant's right to a hearing and representation of his choice.

Reasoning

The court applied the balance of probabilities standard, adopting the Respondent's own concession that the evidence was one word against another. On that standard, the Respondent failed to demonstrate a clear pursuit of the elements of substantive and procedural fairness under sections 41 and 42 of the Employment Act. There was no proof of adequate notice of the disciplinary proceedings or appeal, no evidence of the right to a hearing or proper representation by shop stewards of the grievant's choice, and the Claimant's case remained uncontroverted, tilting the matter in his favour.

p. 5
02

Whether the Claimant is entitled to the relief sought

Holding

On a finding of unlawful termination, the Claimant became entitled to relief, and the court granted reinstatement with return of personal effects.

Reasoning

Having found the dismissal wrongful, unfair and unlawful, the court held the Claimant entitled to the relief sought. It exercised its discretion to grant the primary remedy of unconditional reinstatement with a reporting date, rather than the alternative monetary reliefs, and ordered return of the household and personal effects removed from his living quarters on termination.

p. 5

Legal principles established

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  • An employer must demonstrate both substantive and procedural fairness under sections 41 and 42 of the Employment Act, including proper notice of disciplinary proceedings and the right to a hearing with representation of the employee's choice, failing which the termination is wrongful, unfair and unlawful.

Court orders

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  1. 1.The grievant, Dennis Siro, be and is hereby reinstated to his employment and reports to work on 15th November, 2016 at 800 hours.
  2. 2.The Respondent be and is hereby ordered to return all the grievant's household/personal effects realised during removal from living quarters on termination of employment.
  3. 3.Each party bears its own costs of this claim.

Authorities

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Legislation

  • Employment Act, 2007Section 41(1)
  • Employment Act, 2007Section 41(2)
  • Employment Act, 2007Sections 42, 43(1), 44(3) and (4), 45

Cases cited (4)

  • Peter Apolo Ochieng v. Amedo Centre Kenya Limited
    (2016) eKLR
  • Margaret Auma Ingwe v. Kenya Power and Lighting Company Limited
    (2015) eKLR
  • Rebecca Ann Maina & 2 Others v. Jomo Kenyatta University of Agriculture & Technology
    (2014) eKLR
  • Bernard Shisiali Muhatia v Speedex Logistics Ltd
    (2013)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over a claim of unfair and unlawful summary dismissal under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Plantation & Agricultural Workers Union v Sotik Tea Highlands Estate [2016] KEELRC 378 (KLR)", Case Analysis (2016). Memorandum of Claim dated 22nd July, 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/378/eng@2016-11-14

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