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ELRCDismissedStatement of Claim dated 7th April, 2016· [2017] KEELRC 1860 (KLR)

Kenya Union of Commercial Food and Allied Workers v Kisii Bottlers Ltd [2017] KEELRC 1860 (KLR)

Employment and Labour Relations Court
31 January 2017
DMD.K.Njagi Marete
2,153 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 upheld an employee's dismissal because the union could not prove unfair procedure, showing evidence beats arguments.

What this practically means

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Executive summary

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The claimant union brought a Statement of Claim dated 7th April, 2016 on behalf of grievant Thomas Osano Magangi, a Mirror Inspector employed from 1st March, 2003, challenging his dismissal as unprocedural, unjustified, unfair and unlawful. The dismissal followed a show cause letter of 9th October, 2015 for failure to report to work on 5th October, 2015, a suspension citing absenteeism and failure to collect a company sick sheet, a disciplinary hearing of 16th October, 2015, and a dismissal letter of 18th November, 2015 which additionally cited insubordination towards the Production Manager. The union argued the grievant was sick, acted under Section 30 of the Employment Act and clauses 12 and 29 of the CBA, that the suspension exceeded 30 days, and that the additional ground of insubordination was an ambush. The respondent maintained the termination was procedural, lawful and fair, citing gross misconduct (absconding duty and insubordination) and entitlement to pay in lieu of notice. After hearing oral testimony from the grievant (CW1) and three defence witnesses, the court framed three issues and found the respondent had abundantly proved absence from duty and insubordination, and that a show cause letter and disciplinary proceedings preceded dismissal. The claimant's procedural fairness arguments were said to be undemonstrated in evidence. The court held the termination lawful, refused the declaration and reinstatement, dismissed the claim with costs to the respondent on 31st January, 2017.

Key legal issues

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01

Whether the termination was wrongful, unfair and unlawful

Holding

The termination was lawful; the respondent proved absence from duty on 5th October 2015 and insubordination on 9th October 2015, followed by show cause and disciplinary proceedings recommending dismissal

Reasoning

The court scrutinised both parties' cases and evidence. The respondent adduced abundant evidence of absence from duty and insubordination through three witnesses. The claimant's attempt to rely on procedural fairness was not demonstrated in evidence. The claimant's witness was even found uncooperative in cross-examination. Accordingly, the dismissal after disciplinary proceedings was held lawful.

p. 5
02

Entitlement to relief

Holding

The claimant is not entitled to the relief sought having failed to prove unlawful termination

Reasoning

Since the court found the termination lawful, the declaration and reinstatement sought could not issue. The claim was dismissed with costs to the respondent.

p. 5

Legal principles established

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  • A party alleging breach of procedural fairness must demonstrate it in evidence; a lawful termination following a show cause letter and disciplinary proceedings will be upheld

Court orders

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  1. 1.The claim is dismissed
  2. 2.Costs of the suit awarded to the respondent

Authorities

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Legislation

  • Employment Act 2007Section 30
Jurisdiction invoked
Employment and labour relations dispute referred following a conciliation process under the Ministry of Labour (referral certificate issued 7th March, 2016)

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 Union of Commercial Food and Allied Workers v Kisii Bottlers Ltd [2017] KEELRC 1860 (KLR)", Case Analysis (2017). Statement of Claim dated 7th April, 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1860/eng@2017-01-31

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