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ELRCAllowedMemorandum of Claim dated 22nd July 2014· [2016] KEELRC 1166 (KLR)

Kenya Plantation And Agricultural Workers Union v Unilever Tea Kenya Limited [2016] KEELRC 1166 (KLR)

Industrial Court / Employment and Labour Relations Court
17 May 2016
DMD.K. Njagi Marete
2,400 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 reinstated a Kenya Breweries worker and awarded him 12 months' salary because his dismissal hearing was procedurally flawed.

What this practically means

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Executive summary

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The claimant, through his union, brought a Memorandum of Claim dated 22nd July 2014 challenging the summary dismissal of the grievant, Simon Sang, on 5th October 2013 on grounds of gross misconduct under section 44(4)(c) and (e) of the Employment Act and clause 24 of the CBA. The allegations included failing to adhere to company procedure on recording overtime, colluding with a fellow employee over equivalent time off, misusing authority, and touching a female employee without her consent. The respondent maintained that a fair disciplinary process was followed, including a show cause letter, a hearing, and an appeal which upheld the dismissal, after which conciliation before a Ministerial conciliator ended in stalemate. The court framed three issues: whether the termination was wrongful, unfair and unlawful; entitlement to relief; and costs. On evidence, the court agreed with the claimant's submission that DW1 Joyce Rop's testimony on the offences was hearsay since she did not witness the events, oral evidence having to be direct under section 62 of the Evidence Act. The court also adopted the principle in Fredrick Saundu Amolo that the employer must inform the employee of allegations and of the right to representation of his choice, finding the disciplinary process deficient, and rejected reliance on an outdated sexual harassment policy. It found the termination wrongful, unfair and unlawful and allowed the claim, ordering reinstatement without loss of emoluments, seniority and benefits, resumption of work on 18th May 2016, twelve months' salary of Kshs. 72,000.00 as compensation, and costs to the respondent.

Key legal issues

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01

Whether the summary dismissal was wrongful, unfair and unlawful

Holding

The court found the termination wrongful, unfair and unlawful, answering in the negative whether due disciplinary process was substantially and procedurally pursued.

Reasoning

The respondent's sole witness (DW1 Joyce Rop) did not witness the events and her evidence on the offences was hearsay, contrary to the rule that oral evidence must be direct. The disciplinary process was also flawed: shop stewards attended at the respondent's invitation rather than representation of the claimant's own choice, and the respondent did not discharge the statutory duty under section 41 of the Employment Act to inform the employee of his right to representation. The respondent also tendered an outdated sexual harassment policy, whose applicability the court rejected.

p. 5
02

Entitlement to relief

Holding

The claimant was entitled to the relief sought; reinstatement with full emoluments plus twelve months' salary compensation and costs were awarded.

Reasoning

Having found the dismissal wrongful, unfair and unlawful, the court exercised its discretion to reinstate the grievant without loss of emoluments, benefits, privileges, seniority and promotions, directed him to report back to work on 18th May 2016, and additionally awarded twelve months' salary at Kshs. 6,000.00 per month (Kshs. 72,000.00) as compensation, with costs to the respondent.

p. 5

Legal principles established

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  • Oral evidence must in all cases be direct; a witness who did not witness the events cannot give competent evidence of them.
  • The employer bears the duty to inform an employee of the allegations against him and of his right to representation of his choice at a disciplinary hearing.

Court orders

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  1. 1.That the claimant be and is hereby reinstated to employment without loss of emoluments, benefits, privilleges, seniority and promotions.
  2. 2.That the claimant be and is hereby ordered to resume/report back to work on 18th May, 2016 at 800 hours.
  3. 3.That the claimant be and is hereby awarded twelve (12) months’ salary as compensation for unlawful termination of employment, that is Kshs. 6,000.00 x 12 = Kshs. 72,000.00.
  4. 4.That the cost of this claim shall be borne by the respondent.

Authorities

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Legislation

  • Employment ActSection 44(4)(c) and (e)
  • Employment ActSection 41
  • Evidence Act, Chapter 80 of the laws of KenyaSection 62

Cases cited (2)

  • Fredrick Saundu Amolo Vs. Principal Namanga Mixed Day Secondary School & 2 Others
    (2014) eKLR
  • Chimwaga Mwamuye Mwabonje v Nine One One Group Limited
    (2015) eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction of the Industrial Court; claim by Memorandum of Claim dated 22nd July 2014

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 And Agricultural Workers Union v Unilever Tea Kenya Limited [2016] KEELRC 1166 (KLR)", Case Analysis (2016). Memorandum of Claim dated 22nd July 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1166/eng@2016-05-17

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