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ELRCPartially AllowedCause No 859 of 2015· [2017] KEELRC 1902 (KLR)

Amalgamated Union of Kenya Metal Workers v Civicon Ltd [2017] KEELRC 1902 (KLR)

Employment and Labour Relations Court
20 January 2017
OMO. N. Makau
1,929 words in judgment
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The bottom line

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A Kenyan court ruled Grid Oil unfairly fired its machine operator and ordered payment of over Kshs. 153,000, costs and interest.

What this practically means

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Executive summary

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The claimant, suing on behalf of the grievant Francis Onzere, a JCB Backhoe operator employed on a one-year fixed-term contract from 3.1.2014 at a gross salary of Kshs. 24,000, challenged the termination of his employment following the breakage of the machine's right-hand side glass on 26.4.2014. The respondent alleged the grievant broke the glass through careless and negligent driving. Parties dispensed with oral hearing, adopted pleadings and documents, and agreed three issues: validity of the reason for termination, procedural fairness, and reliefs. The court found the employer failed to prove negligence: the only eyewitness was the grievant, whose account that wind banged the door and broke the glass was consistent with one of the employer's own reports, while Mr. Glenn's contrary email was not based on primary evidence. The employer also failed to prove the grievant attended the disciplinary hearing, not calling the committee members or security personnel nor producing attendance registers, and the show cause letter breached section 41 of the Employment Act by not offering accompaniment by a colleague or union representative. The termination was held unfair under section 45(2). Reinstatement was refused as impracticable given the broken relationship, the employer's attitude to diabetic employees, and the contract's expiry on 20.12.2014. The court awarded the salary for the remaining contract term (Kshs. 144,000) and pro-rata leave of 10.5 days (Kshs. 9,692.30), but dismissed the Kshs. 10,000 transport refund as unproved special damages. Judgment was entered for the claimant for Kshs. 153,692.30 plus costs and interest, delivered at Mombasa on 20 January 2017 by O.N. Makau, J.

Key legal issues

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01

Whether the reason for termination was valid and just

Holding

The respondent failed to prove negligence or carelessness by the grievant; the only eyewitness was the grievant and his account was believed

Reasoning

The employer relied on an email and an undated letter by persons who did not witness the incident, and those accounts were contradictory. Mr. Glenn's account that the grievant admitted driving with the door open was found false as it was not founded on primary evidence or expert opinion. The grievant, the only person present, gave a consistent account that wind banged the door. The employer therefore failed to discharge the burden under sections 43 and 47(5) of the Employment Act.

p. 2
02

Whether the termination followed a fair procedure

Holding

The respondent failed to prove that the grievant attended the disciplinary hearing, and the show cause letter breached section 41 by not offering accompaniment by a colleague or union representative

Reasoning

The respondent did not call members of the disciplinary committee or security personnel, nor produce visitors or employees registers, to prove the grievant attended the hearing. The show cause letter's wording did not inform the grievant of his statutory right to be accompanied by a fellow employee or shop floor union representative of his choice, breaching the mandatory requirements of section 41 of the Employment Act. The termination was therefore procedurally unfair.

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03

Whether reinstatement was an appropriate remedy

Holding

Reinstatement refused as impracticable given the broken relationship, the employer's attitude to diabetic employees, and the imminent expiry of the fixed-term contract

Reasoning

The court considered the relationship between the parties broken down, noted the respondent's evident unwillingness to employ diabetic persons as expressed in Mr. Glenn's email, and observed that the grievant's one-year fixed-term contract was to expire on 20.12.2014, leaving only about six months. Compensation in lieu of the remainder of the contract was awarded instead of reinstatement.

Legal principles established

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  • The burden of proving and justifying the reason for termination lies on the employer in legal proceedings
  • An employer must in mandatory terms follow a fair procedure under section 41 of the Employment Act, including informing the employee of the right to be accompanied by a fellow employee or union representative
  • An employee who is terminated after serving two or more consecutive months is entitled to one and three-quarter leave days per completed month of service

Court orders

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  1. 1.Judgment entered for the claimant on behalf of the grievant in the sum of Kshs. 153,692.30
  2. 2.Costs of the suit awarded to the claimant
  3. 3.Interest on the decretal sum

Authorities

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Legislation

  • Employment Actsection 45(2)(a) and (b)
  • Employment Actsection 43
  • Employment Actsection 47(5)
  • Employment Actsection 45(2)(c)
  • Employment Actsection 41
  • Employment Actsection 49(1)
  • Employment Actsection 28(1)(b)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance unfair termination 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, "Amalgamated Union of Kenya Metal Workers v Civicon Ltd [2017] KEELRC 1902 (KLR)", Case Analysis (2017). Cause No 859 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1902/eng@2017-01-20

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