Amalgamated Union of Kenya Metal Workers v Settlers Engineering Limited [2017] KEELRC 1697 (KLR)
The bottom line
#The Employment Court in Nakuru ruled an employee who was evicted and never given a hearing was unfairly dismissed, not a deserter, and awarded him compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Cause was premature due to a pending dispute before the Labour Office
Not premature; the Grievant personally reported the dispute under section 47 of the Employment Act, under which section 47(3) does not bar him from approaching the Court
The dispute was reported to the District Labour Officer by the Grievant, not by a Union to the Cabinet Secretary under section 62 of the Labour Relations Act. No conciliator was appointed by the Cabinet Secretary. Under section 47(3) of the Employment Act an employee may approach the Court without awaiting conciliation. Prematurity therefore did not arise.
Whether the Grievant was on fixed term contracts or employed from 1998 on indefinite contract
Employed in 1998 on a contract of indefinite duration
The Respondent's director contradicted himself on the commencement date, admitting the Grievant was housed by the Respondent from 2007 while claiming employment in 2011. The Respondent, obliged under sections 9 and 10 of the Employment Act to issue a written contract, produced none. The Court therefore inferred employment from 1998 on indefinite terms.
Whether the Grievant deserted or was dismissed
The Grievant did not desert but was dismissed
The Respondent pleaded contradictory positions (desertion and summary dismissal). Desertion requires the employee's intention not to return; here the Respondent evicted the Grievant from his quarters with police assistance, showing the Respondent ended the relationship. Even if desertion, it would be misconduct requiring a hearing under section 41, which was not given.
Whether the dismissal was unfair
Unfair, because the Grievant was not afforded an opportunity to be heard
Section 41(1) and (2) of the Employment Act obliged the Respondent to hear the Grievant on the allegation of desertion/misconduct before termination. No such opportunity was granted. The dismissal was therefore procedurally unfair, entitling the Grievant to notice pay, accrued wages and compensation.
Legal principles established
#- An employer must afford an employee an opportunity to be heard before termination for misconduct (desertion), per section 41(1) and (2) of the Employment Act
- A party asserting desertion must demonstrate the employee formed an intention not to return to work
- An employer's failure to issue a written contract under sections 9 and 10 of the Employment Act may lead the Court to infer employment of indefinite duration from the date actual employment began
Court orders
#- 1.Finding that the Grievant's employment was unfairly terminated
- 2.Respondent to pay the Grievant 1 month pay in lieu of notice (Kshs 6,500), June 2011 wages (Kshs 4,530) and compensation equivalent of 12 months gross wages (Kshs 78,000), total Kshs 89,030
- 3.Respondent to issue the Grievant a certificate of service within 14 days
- 4.Each party to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over trade disputes (Employment Act, 2007 and Labour Relations Act provisions invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amalgamated Union of Kenya Metal Workers v Settlers Engineering Limited [2017] KEELRC 1697 (KLR)", Case Analysis (2017). Cause not stated in judgment (Memorandum of Claim lodged 20 December 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1697/eng@2017-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.