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ELRCPartially AllowedCause No. 1297 of 2013· [2018] KEELRC 252 (KLR)

Tailors & Textiles Workers Union v Spin Knit Limited [2018] KEELRC 252 (KLR)

Employment and Labour Relations Court
4 December 2018
HWHellen S. Wasilwa
605 words in judgment
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The bottom line

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An employer who fails to show up and defend a dismissal case loses automatically, even decades after the firing.

What this practically means

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Executive summary

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The Claimant union filed a Memorandum of Claim on 14.8.2013 alleging overworking of employees at 52 hours instead of 45 hours per week and wrongful dismissal of Lucy Mwangi, Hezekiah Mukabane and Livingstone Anyonje. In final submissions filed 19.10.2015, the Claimant withdrew the overworking prayer, the claim for Lenny Mwangi who had been paid his final dues, and the claim for Livingstone Anyonje whom they could not trace, leaving only the claim for wrongful dismissal of Hezekiah Mukabane. The grievant testified he was employed by the Respondent from 12th May 1987 as a General Worker at a salary of Kshs. 2,291 and was dismissed on 13.6.1994 after being injured as an attendant, contending he was dismissed because he sued the Respondent for injuries sustained. He explained the delay in moving to court by the conciliation process under the Trade Dispute Act, with the Ministry of Labour releasing its report on 23.4.2010. He disputed the Respondent's allegation that he absconded duty, stating he had been given a gate pass to bring a medical certificate the same day. He sought judgment of Kshs. 50,501. Following an order of 18/9/2017 that the claim proceed for formal proof, the case was heard on 24/10/2018. The Respondent gave no evidence. Finding the grievant's employment proven and the case unchallenged, the court entered judgment for the grievant totalling Kshs. 45,731, comprising wages, house allowance, three months' notice pay per the CBA, severance pay at 15 days per completed year, and 12 months' compensation for wrongful termination, ordered issuance of a certificate of service, and awarded the Claimant costs plus interest at court rates from the date of judgment.

Key legal issues

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01

Existence of employment relationship

Holding

The court found proof that the grievant was an employee of the Respondent, having been employed from 12th May 1987 as a General Worker.

Reasoning

The grievant testified that he was employed by the Respondent from 12th May 1987 as a General Worker at a salary of 2,291 and was never issued with an appointment letter. The Respondent, despite being served, never gave any evidence to counter the Claimant's evidence, leaving the claimant's account unchallenged. On that uncontroverted testimony the court was satisfied that an employment relationship existed and had ended without any indication of a lawful basis.

p. 1
02

Wrongful dismissal and entitlement to remedies

Holding

The court found for the Claimant on the claim of wrongful dismissal and awarded terminal dues, notice pay, severance pay and 12 months' compensation.

Reasoning

The grievant contended he was dismissed on 13.6.1994 after he was injured as an attendant and because he sued the Respondent for injuries sustained. The Respondent alleged he absconded duty, which the grievant disputed, noting he was given a gate pass to bring a medical certificate. With no rebuttal evidence from the Respondent, the court accepted the claimant's version of verbal dismissal without payment of terminal dues and entered judgment including 12 months' compensation for wrongful termination.

p. 1

Legal principles established

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  • Where a respondent gives no evidence to counter the claimant's evidence, the claimant's case remains unchallenged and the court may find for the claimant on the uncontroverted evidence.

Court orders

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  1. 1.Judgment entered for the grievant Hezekiah Mukabane for wages for days worked of Kshs. 1,722
  2. 2.House allowance of Kshs. 480
  3. 3.Three months' pay in lieu of notice of Kshs. 6,873 per the Collective Bargaining Agreement
  4. 4.Severance pay at 15 days for each completed year of service of Kshs. 9,164
  5. 5.12 months' compensation for wrongful termination of Kshs. 27,492, totalling Kshs. 45,731
  6. 6.The grievant to be issued with a certificate of service
  7. 7.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Trade Dispute Actconciliation process
Jurisdiction invoked
Employment and labour relations dispute referred through the Ministry of Labour conciliation process under the Trade Dispute Act; suit filed in the Employment and Labour Relations Court

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, "Tailors & Textiles Workers Union v Spin Knit Limited [2018] KEELRC 252 (KLR)", Case Analysis (2018). Cause No. 1297 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/252/eng@2018-12-04

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