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ELRCPartially AllowedCause No 58 of 2013· [2016] KEELRC 492 (KLR)

Kenya Union of Commercial, Food and Allied Workers v Kitulani Stores Limited [2016] KEELRC 492 (KLR)

Employment and Labour Relations Court
14 October 2016
ANAbuodha Jorum Nelson
1,093 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled an employer must prove why it fired workers, and supervisors cannot legally be paid general-worker wages.

What this practically means

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Executive summary

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The claimant union, acting for three grievants formerly employed by the respondent from 2011, alleged that their services were terminated in March 2012 after they failed to procure guarantors under a new guarantee policy, and that they were asked to resign as a precondition for terminal dues which were never paid. The union also claimed underpayment. The respondent denied this, asserting the grievants absconded duty after refusing to sign guarantee forms, were warned and were dismissed on 9th April 2012, and that their pay conformed to the Regulations of Wages Order, 2010. After hearing the grievants and the respondent's director, the court found it more probable that the grievants could not continue working without procuring the guarantees, and that the absence of a show cause letter before dismissal for absconding was fatal. The respondent had therefore failed to discharge its legal burden of proving the reasons for termination, and the dismissal was held unfair, attracting an award of six months' wages. On underpayment, although the grievants held no formal qualifications, they performed elevated supervisory duties and could not be paid as general workers; the court classified them ejusdem generis with cashier, driver and salesman-driver under item 11 of the 2010 Wages Order, with a minimum wage of Kshs.13,426. The court awarded the difference between actual earnings and that minimum wage from the dates of hire to termination, plus costs of the suit to the claimant.

Key legal issues

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01

Fairness of termination

Holding

The dismissal was unfair because the respondent failed to prove valid reasons, including the absence of a show cause letter before dismissal for absconding

Reasoning

The court found that the grievants were effectively unable to continue working without procuring guarantees, that the respondent's version of voluntary departure and absconding was not substantiated, and that a show cause letter was necessary before dismissal. The employer therefore failed to discharge the statutory burden of proving reasons for termination, justifying an award of six months' wages.

p. 2
02

Underpayment of wages

Holding

The grievants were entitled to the statutory minimum wage of Kshs.13,426 under item 11 of the 2010 Wages Order given their elevated roles

Reasoning

Although the grievants produced no academic or professional credentials, it was not disputed that they held supervisory roles elevating them above general workers. The court classified them ejusdem generis with cashier, driver and salesman-driver under item 11 of the 2010 Wages Order and awarded the difference between actual earnings and the statutory minimum from hire to termination.

p. 2

Legal principles established

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  • The employer bears the burden of proving the reasons for a dismissal or termination, including issuing a show cause letter before dismissal for absconding duty
  • Employees assigned supervisory or elevated responsibilities cannot be remunerated at general worker rates and are entitled to the statutory minimum wage for comparable categories

Court orders

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  1. 1.Award of six months' wages to the grievants on account of unfair termination of services
  2. 2.Award of the difference between the salary actually earned and the statutory minimum wage of Kshs.13,426, payable from the dates of hire to the dates of individual termination
  3. 3.Costs of the suit to the claimant

Authorities

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Legislation

  • Regulations of Wages Orderitem 11 (2010 Wages Order)
Jurisdiction invoked
Referral of an unresolved trade dispute to the Court following conciliation under the Labour Relations Act (certificate of unresolved Trade Dispute issued by the conciliator appointed by the Minister for Labour)

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 Kitulani Stores Limited [2016] KEELRC 492 (KLR)", Case Analysis (2016). Cause No 58 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/492/eng@2016-10-14

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