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ELRCPartially AllowedCause No 14 of 2014· [2016] KEELRC 1126 (KLR)

Kenya Shoe & Leather Workers Union v Kenafric Industries Limited [2016] KEELRC 1126 (KLR)

Employment and Labour Relations Court
27 May 2016
ANAbuodha Jorum Nelson
1,232 words in judgment
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The bottom line

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A Kenyan employer was ordered to pay an unfairly dismissed worker over Kshs.100,000 because it lacked a valid reason and denied him union representation.

What this practically means

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Executive summary

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The grievant, Joseph Webo, was employed by the respondent on 5th January 1998 as a general labourer and was summarily dismissed on 30th June 2012 on allegations that on the evening of 29th June 2012 he clocked in for the night shift and sneaked out a few minutes later, returning the next morning to clock out as though he had worked the whole night. At dismissal he earned Kshs.8,650 basic salary plus Kshs.2,500 house allowance. Conciliation by a Labour Official failed, prompting this claim. The respondent admitted the employment relationship but justified the dismissal as gross misconduct, relying on the grievant's written admission and apology, and denied any outstanding leave. Counsel for the grievant argued the staff list excluded him from the night shift and that no union or shop floor representative was invited to the disciplinary hearing, rendering the dismissal unfair both substantively and procedurally. Counsel for the respondent insisted the claimant bore the burden of proving unfair termination. The court held that the explanations the grievant offered were plausible - the night shift roster did not bear his name and the respondent did not challenge the document - so the reason for dismissal was neither valid nor justifiable. The procedure was also unfair because the grievant's union representative or shop floor officials were not called to the hearings. The court found in favour of the grievant and awarded two months' salary in lieu of notice (Kshs.17,300), ten months' salary as compensation for unfair termination (Kshs.86,500), costs of the suit, and ordered the respondent to issue a certificate of service.

Key legal issues

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01

Validity of the reason for summary dismissal

Holding

The alleged reason - clocking in for night shift, leaving and returning to clock out - was not valid or justifiable because the grievant's explanations were plausible and the night shift roster did not bear his name

Reasoning

The court examined the grievant's explanations (appendix JW11) in which he stated he reported for work but was told there was no work, and was advised by Human Resource to go home and return to fill in leave. The night shift roster, though obliterated at one point, did not include the grievant's name, and the respondent did not challenge the document's genuineness. Accordingly the dismissal was not grounded on a valid reason.

p. 3
02

Fairness of the dismissal procedure

Holding

The procedure was unfair because, as a unionisable employee, neither a union representative nor shop floor officials were called to the disciplinary hearing leading to dismissal

Reasoning

Counsel for the grievant demonstrated that no union official or shop floor representative was invited to any disciplinary hearing. The court accepted that the grievant was a member of a union duly recognised by the respondent, and held that had such representatives been present, a different decision may have been reached. The absence of representation rendered the process procedurally unfair.

p. 3

Legal principles established

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  • In termination of employment claims the onus of proving that the termination was unfair or wrongful rests with the employee while the employer has a duty to justify the reasons for the termination

Court orders

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  1. 1.Award of 2 months salary in lieu of notice of Kshs.17,300/= and 10 months salary as compensation for unfair termination of Kshs.86,500/=, total Kshs.103,800/=
  2. 2.Costs of the suit to the claimant
  3. 3.The respondent shall issue the grievant with a certificate of service
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over a termination-of-employment claim following failed conciliation by a Labour Official

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 Shoe & Leather Workers Union v Kenafric Industries Limited [2016] KEELRC 1126 (KLR)", Case Analysis (2016). Cause No 14 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1126/eng@2016-05-27

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