Kenya Plantation & Agricultural Workers Union v Eastern Produce Kenya Limited [2017] KEELRC 1833 (KLR)
The bottom line
#Kenya's Employment Court reinstated a tea worker dismissed for allegedly faking medical records, ruling employers must actually prove dishonesty claims.
What this practically means
#Executive summary
#Key legal issues
#Whether termination was wrongful, unfair and unlawful
Yes. The dismissal on alleged falsified medical records was not established in evidence; the claimant's account was neater on a preponderance of evidence, and the disciplinary process violated section 41 of the Employment Act
The court applied a preponderance of evidence test. The respondent's case of dishonesty/forged medical records remained a mere allegation, contradicted by the claimant's evidence including the Medical Superintendent's confirmation that the grievant attended Nandi Hills Hospital. Procedurally, the grievant received only hours' notice of the disciplinary hearing, was not informed of the charges, and was not afforded union representation as required by section 41(1) and (2) of the Employment Act, 2007. The termination was therefore both substantively and procedurally unfair.
Entitlement to relief
The claimant was entitled to the relief sought; reinstatement was ordered
Having found unlawful termination, the court held the grievant entitled to relief and elected reinstatement to her former position, with a specified resumption date of 1st February, 2017 at 800 hours. The alternative monetary prayers fell away. Costs followed the event and were awarded to the claimant against the respondent.
Costs of the suit
Costs awarded to the claimant, to be borne by the respondent
Following the established practice that costs follow the event, and the claimant having succeeded in establishing unlawful termination, the court ordered the respondent to bear the costs of the claim.
Legal principles established
#- Where an employer alleges dishonesty as ground for dismissal, it must establish it in evidence; a mere allegation does not justify termination
- Procedural fairness under section 41 of the Employment Act requires adequate notice of a disciplinary hearing and an opportunity to have a representative of the employee's choice
Court orders
#- 1.Reinstatement of the grievant to her former position in office
- 2.The grievant to resume work on 1st February, 2017 at 800 hours
- 3.The costs of the claim to be borne by the respondent
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Employment and Labour Relations Court (Cause filed by Memorandum of Claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Plantation & Agricultural Workers Union v Eastern Produce Kenya Limited [2017] KEELRC 1833 (KLR)", Case Analysis (2017). Cause No. 14 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1833/eng@2017-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.