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ELRCPartially AllowedCause No. 14 of 2016· [2017] KEELRC 1833 (KLR)

Kenya Plantation & Agricultural Workers Union v Eastern Produce Kenya Limited [2017] KEELRC 1833 (KLR)

Employment and Labour Relations Court of Kenya
31 January 2017
3,291 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 tea worker dismissed for allegedly faking medical records, ruling employers must actually prove dishonesty claims.

What this practically means

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Executive summary

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The Kenya Plantation & Agricultural Workers Union brought a claim on behalf of grievant Leah Oranga against Eastern Produce Kenya Limited, challenging her summary dismissal on 10th July 2013 on grounds of presenting falsified medical treatment records from Nandi Hills Hospital. The union's case was that the grievant sustained a hip injury at work on 31st May 2013, was treated and given off-duty and physiotherapy recommendations, and was instead dismissed without being informed of the charges, without adequate notice of the disciplinary hearing, and without shop steward representation as provided under the CBA. The respondent denied the injury and dispensary attendance, asserting that attendance records showed the grievant at work, and maintained that verification revealed the medical records to be forged. The court framed three issues: whether termination was wrongful, unfair and unlawful; entitlement to relief; and costs. Applying a preponderance of evidence test, Marete J found the claimant's case neater; the respondent's dishonesty allegation remained unsubstantiated and was contradicted by the Medical Superintendent's confirmation of the grievant's hospital attendance. The court held the termination unlawful and procedurally unfair under section 41 of the Employment Act, 2007. The claim was allowed: the grievant was reinstated to her former position, ordered to resume work on 1st February 2017 at 800 hours, and the respondent was ordered to bear the costs of the claim.

Key legal issues

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01

Whether termination was wrongful, unfair and unlawful

Holding

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

Reasoning

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.

p. 6
02

Entitlement to relief

Holding

The claimant was entitled to the relief sought; reinstatement was ordered

Reasoning

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.

p. 6
03

Costs of the suit

Holding

Costs awarded to the claimant, to be borne by the respondent

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.Reinstatement of the grievant to her former position in office
  2. 2.The grievant to resume work on 1st February, 2017 at 800 hours
  3. 3.The costs of the claim to be borne by the respondent

Authorities

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Legislation

  • Employment Act, 2007Section 41(1) and (2)
  • Employment Act, 2007Section 45(4)(b)
  • Employment Act, 2007Section 44(3) and (4)
  • Employment Act, 2007Section 42(1)

Cases cited (4)

  • Charles Maina Munyua v. Victory Construction Limited
    (2013) eKLR
  • Patrick Abuya v. Institute of Certified Public Accountants of Kenya (ICPAK) & Another
    (2015) eKLR
  • Fredrick Saundu Amolo v Principal Namanga Mixed Day Secondary School & 2 Others
    2014 eKLR
  • Mc Kinley Vs. BC Tel
    (2001) 2 S.C.R 161, 2001 SCC 38
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment and Labour Relations Court (Cause filed by Memorandum of Claim)

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 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.