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ELRCAllowedCause No. 1602 of 2013· [2018] KEELRC 283 (KLR)

Kenya Building, Construction, Timber and Furniture Industries Employees Union v H. Young & Company (E.A) Limited [2018] KEELRC 283 (KLR)

Employment and Labour Relations Court
20 December 2018
HWHellen S. Wasilwa
1,298 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant Union, on behalf of six grievants dismissed by H. Young & Company (E.A) Limited on 19.2.2013, claimed unlawful dismissal and underpayment of wages. The grievants had been issued undated memos requiring written explanations of their knowledge of alleged theft of a fuel pump from a generator and a battery, alternator and starter from a vehicle. Despite submitting written explanations, they were sent for a polygraph test on 8.2.2013, which concluded all six were involved, leading to summary dismissal with effect from 19.2.2013. A conciliator appointed after the dispute was reported to the Minister for Labour recommended the dismissals be reduced to normal termination with payment of terminal dues, which the Respondent declined. The Respondent defended the dismissals as lawful termination for gross misconduct under sections 44(4)(c) and (g) of the Employment Act, contending the grievants had an implied duty to account for and report loss of equipment in their charge. The court held that the dismissal letter dated 19.2.2013 assigned no reason for the dismissal, so the Respondent failed to prove a valid reason under section 43 of the Employment Act. It further held that the grievants were never taken through a disciplinary hearing, offending section 41, rendering the dismissals unfair under section 45(2). Each grievant was awarded salary in lieu of notice per the CBA, eight months' salary as compensation for unfair termination, January 2013 wages, accrued leave, and service gratuity under Clause 19 of the CBA, with specific sums quantified for each grievant. The Respondent was ordered to pay costs plus interest at court rates from the date of judgment.

Key legal issues

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01

Valid reason for termination

Holding

The dismissal letter dated 19.2.2013 assigned no reason for the dismissal, so the Respondent had no valid reason for dismissing the grievants.

Reasoning

Section 43(1) of the Employment Act places the burden on the employer to prove the reasons for termination, being the matters the employer genuinely believed to exist at the time of termination. The dismissal letter dated 19.2.2013 did not assign any reason. The court could not discern why the grievants were dismissed without reasons and therefore found the Respondent had no valid reason for the dismissal, deeming the termination unfair under section 45.

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02

Procedural fairness

Holding

The grievants were dismissed without any disciplinary hearing, offending section 41 of the Employment Act and rendering the dismissal procedurally unfair.

Reasoning

Section 41 requires an employer, before terminating employment on grounds of misconduct, to explain the reasons to the employee in a language the employee understands, allow an employee or union representative to be present, and hear and consider any representations. There was no indication the grievants were taken through any disciplinary hearing before dismissal. Combined with the absence of communicated reasons, the dismissals were unfair under section 45(2).

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Legal principles established

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  • An employer bears the burden of proving the reasons for termination; failure to assign any reason in the dismissal letter means there is no valid reason and the termination is unfair.
  • Dismissal without a disciplinary hearing offends section 41 of the Employment Act and renders the termination procedurally unfair.

Court orders

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  1. 1.Salary in lieu of notice for each grievant as per the CBA
  2. 2.8 months' salary as compensation for unlawful and unfair termination for each grievant
  3. 3.Wages for days worked in January 2013 for each grievant
  4. 4.Accrued leave for each grievant
  5. 5.Service gratuity as per Clause 19 of the Claimant's CBA with the Respondent
  6. 6.Payment of the quantified awards: Michael Odhiambo Kshs.416,060/=; Patrick Muthee Njeru Kshs.211,083/=; James Gichuhi Kshs.346,322/=; Moses Kamau Kimani Kshs.277,672/=; Ronfestus Kioko Kimeu Kshs.313,211/=; Pius Gathai Kagori Kshs.611,222/=
  7. 7.Respondent to pay costs of the suit plus interest at Court rates from the date of the judgment

Authorities

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Legislation

  • Employment Act 2007Section 43
  • Employment Act 2007Section 41
  • Employment Act 2007Section 45(2)
  • Employment Act 2007Section 44(4)(c) and (g)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (sections 41, 43, 44(4)(c) and (g), 45(2)) over a claim of unlawful dismissal and underpayment of wages

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 Building, Construction, Timber and Furniture Industries Employees Union v H. Young & Company (E.A) Limited [2018] KEELRC 283 (KLR)", Case Analysis (2018). Cause No. 1602 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/283/eng@2018-12-20

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