Chikophe Janja Kurera & 2 Others v Kassam Hauliers Limited [2016] KEELRC 493 (KLR)
The bottom line
#Kenya's Employment Court ruled that firing workers for joining a trade union is illegal and awarded them compensation, notice pay, and leave dues.
What this practically means
#Executive summary
#Key legal issues
#Validity and fairness of the reason for termination
The respondent failed to prove the alleged poor performance; the true reason was the claimants' joining a trade union, which is not a valid or fair reason.
The HR Manager who testified was not the person who dismissed the claimants and produced no performance appraisal reports or independent witnesses. The Director who allegedly observed the claimants neglecting duty never testified, so his account was hearsay. The court therefore found on a balance of probability that the claimants were dismissed for joining a trade union against the employer's wish, an unfair reason under section 46 read with Article 41 of the Constitution.
Fairness of the termination procedure
The mandatory procedure under section 41 of the Employment Act was not followed; the alleged disciplinary sitting was not proved to comply with section 41.
Section 41 requires the employer to explain the reasons for dismissal to the employee in a language he understands, in the presence of a fellow employee or shop floor union representative of his choice, and to allow the employee to air a defence before termination is decided. Although the defence witness alleged a disciplinary sitting chaired by the Director, he never proved compliance with section 41, so the dismissal was procedurally unfair.
Reliefs payable for unfair termination
Each claimant awarded one month's notice pay, six months' salary as compensation, leave pay, and a certificate of service; overtime, service pay and punitive damages refused.
In exercising discretion under section 49 of the Employment Act, the court considered that the claimants had not served for long and could with due diligence secure alternative employment within six months. Leave was awarded because no leave records disproved the claim. Service pay was excluded by NSSF remittance evidence, and punitive damages lacked legal basis. A certificate of service is a statutory right under section 51.
Legal principles established
#- The burden of proving and justifying the reason for termination lies on the employer under sections 43, 45 and 47(5) of the Employment Act.
- Joining a trade union is not a fair reason for dismissing an employee; the right is guaranteed by Article 41 of the Constitution.
- Before dismissal for misconduct or poor performance, the employer must follow the procedure in section 41 of the Employment Act, including explanation in a language the employee understands and an opportunity to be heard.
- A certificate of service is a right of every employee under section 51 of the Employment Act.
Court orders
#- 1.Judgment entered for the claimants in the aggregate sum of kshs.573,317.35
- 2.One month salary in lieu of notice to each claimant
- 3.Six months' salary as compensation for unfair termination to each claimant
- 4.Payment for leave days earned during service to each claimant
- 5.Certificates of Service to each claimant under section 51 of the Employment Act
- 6.Costs of the suit to the claimants
- 7.Interest on the awarded sum
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (specific constitutional/statutory article not cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chikophe Janja Kurera & 2 Others v Kassam Hauliers Limited [2016] KEELRC 493 (KLR)", Case Analysis (2016). Cause No 230 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/493/eng@2016-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.