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ELRCDismissedCause No. 102 of 2015· [2016] KEELRC 1085 (KLR)

Kenya Plantation & Agricultural Workers Union v Unilever Tea Kenya Limited [2016] KEELRC 1085 (KLR)

Employment & Labour Relations Court of Kenya
16 June 2016
DMD. K. Njagi Marete
1,731 words in judgment
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The bottom line

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Kenya's Employment Court upheld Unilever Tea's dismissal of an employee for taking a bribe, ruling employers only need a balance of probability in workplace disciplinary hearings.

What this practically means

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Executive summary

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The Kenya Plantation & Agricultural Workers Union, on behalf of grievant Simon Mocho, claimed that his summary dismissal by Unilever Tea Kenya Limited was unlawful, illegal, wrongful and unfair. The grievant, a Team Leader in the Welfare & Security Department, was alleged to have solicited and received Kshs. 1,000 from a job applicant, Bosire, as an inducement for employment during a recruitment exercise. The respondent defended the dismissal, relying on its Code of Business Principles, investigations and witness statements, and showed that the grievant was issued a show cause letter, responded, and appeared before a disciplinary hearing with shop stewards on 15th April 2014, after which he was summarily dismissed, his appeal rejected and conciliation before the Minister for Labour failed. The court framed three issues: whether the termination was wrongful, unfair and unlawful; entitlement to relief; and costs. Applying the standard from Joseph Wambugu Kimenchu v Attorney General that internal disciplinary proceedings require only a preponderance of probability, the court found the respondent's coordinated witness evidence established the bribe on a balance of probability, while the claimant failed to support his case in evidence. The court held the termination lawful, held the grievant not entitled to any of the relief sought - declaration, gratuity, twelve months' pay, notice pay, leave and leave travelling allowance - and dismissed the claim, with each party bearing their own costs. Judgment delivered on 16th June 2016 by D. K. Njagi Marete, J.

Key legal issues

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01

Whether the summary dismissal of the grievant for soliciting a bribe was wrongful, unfair and unlawful

Holding

The dismissal was lawful; the respondent proved the bribe allegation on a balance of probability

Reasoning

The respondent's investigation, witness statements and the Code of Business Principles prohibition on bribes established the grievant met the complainant and received money. The standard in internal disciplinary hearings is preponderance of probability, not strict rules of evidence. The claimant failed to rebut this coordinated evidence, so the dismissal for gross misconduct under clause 24(g) of the CBA and section 44 of the Employment Act was upheld.

p. 4

Legal principles established

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  • Strict rules of evidence do not apply to internal disciplinary processes; a preponderance of probability suffices

Court orders

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  1. 1.Dismissal of the claim
  2. 2.Each party to bear their own costs of the claim

Authorities

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Legislation

  • Employment Actsection 44(4)
  • Collective Bargaining Agreementclause 24(g)

Cases cited (1)

  • Joseph Wambugu Kimenchu vs Attorney General
    (2013) eKLR
Jurisdiction invoked
Reference to the Minister for Labour under the Labour Relations Act following failed conciliation; Employment and Labour Relations Court cause

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 Plantation & Agricultural Workers Union v Unilever Tea Kenya Limited [2016] KEELRC 1085 (KLR)", Case Analysis (2016). Cause No. 102 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1085/eng@2016-06-16

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