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ELRCPartially AllowedCause No. 23 of 2018· [2018] KEELRC 952 (KLR)

Dornah Cherono Bor v Unilever Tea Kenya Limited [2018] KEELRC 952 (KLR)

Employment and Labour Relations Court of Kenya
9 October 2018
DMD. K. Njagi Marete
3,239 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled Unilever Tea unfairly fired an employee, awarding her over Kshs.2.6 million because dismissal was too harsh for her misconduct.

What this practically means

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Executive summary

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The claimant, promoted to NTD & Nurseries Officer in March 2015, was summarily dismissed in October 2015 following allegations that she violated the respondent's Code of Business Principles by assigning a former plucking supervisor, an expectant and nursing mother, duties in fields far from her house. The claimant asserted that the complaint was never formally lodged by the alleged complainant, was time-barred under the respondent's Human Resource Policy, and that the disciplinary process was a sham with a predetermined outcome, contrary to Article 47 of the Constitution and the Fair Administrative Action Act. The respondent maintained that the dismissal was lawful and for gross misconduct under section 44(4) of the Employment Act. The court, determining three issues, accepted that the claimant committed the misconduct but found that summary dismissal was disproportionate to the offence, that the disciplinary process lacked transparency, and that the denial of her appeal suggested a hidden agenda. Relying on the proportionality standard drawn from Michael Dowling via the Gladys Boss Shollei case, the court held the termination wrongful, unfair and unlawful. The claim was allowed in part: a declaration of unfair termination, one month's salary in lieu of notice and twelve months' salary as compensation, totaling Kshs.2,663,822.00, payable within thirty days, with costs to the claimant. Other claimed dues, such as pension contribution, leave and public holiday pay, and a certificate of service, were not granted in the final orders.

Key legal issues

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01

Whether the summary dismissal of the claimant was wrongful, unfair and unlawful

Holding

The termination was unfair: although the claimant committed the misconduct alleged, the summary dismissal was disproportionate and the disciplinary process lacked transparency, suggesting a hidden agenda.

Reasoning

The court accepted that the claimant allocated distant duties to an expectant and nursing employee contrary to the respondent's Code of Business Principles. However, applying the proportionality standard, the court found the punishment of summary dismissal was not concomitant with the offence, the disciplinary process was not transparent, and the claimant's appeal was declined by the highest authority of the respondent, all of which suggested a hidden agenda.

p. 5
02

Whether the claimant is entitled to the relief sought

Holding

Having succeeded on unfair termination, the claimant was held entitled to relief, which the court awarded as a declaration, one month's salary in lieu of notice and twelve months' salary as compensation.

Reasoning

The court held that winning on the unlawful termination claim entitled the claimant to the relief sought, and proceeded to award a declaration, one month's notice pay and the maximum twelve months' gross salary as compensation, payable within thirty days, with costs to the claimant.

p. 5

Legal principles established

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  • The sanction imposed for misconduct must be proportional; dismissal is warranted only when the misconduct is sufficiently serious that it strikes at the heart of the employment relationship, determined by a contextual examination of the nature and circumstances of the misconduct.

Court orders

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  1. 1.A declaration be and is hereby issued that the dismissal from employment of the claimant by the respondent was wrongful, unfair and unlawful
  2. 2.One (1) month's salary in lieu of notice of Kshs.204,909.40
  3. 3.Twelve (12) months' salary as compensation for unlawful termination of employment of Kshs.2,458,913.00 (204,909.40 x 12), total of Kshs.2,663,822.00
  4. 4.The respondent to meet and pay the claim within thirty (30) days of the judgment
  5. 5.The costs of the claim to be borne by the respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 47
  • Employment Act, 2007Section 41(1) and (2)
  • Employment Act, 2007Section 43(1)
  • Employment Act, 2007Section 44(4)
  • Employment Act, 2007Section 28(1)
  • Fair Administrative Action Act, No. 4 of 2015Sections 4(1), (2), (3)(a), (b), (f) and 4(4)(a) and (c)

Cases cited (2)

  • Michael Dowling vs. Workplace Safety & Insurance Board
    [2004] CAN LII 436 92
  • Judicial Service Commission v Gladys Boss Shollei & another
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act over disputes arising from termination of employment

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, "Dornah Cherono Bor v Unilever Tea Kenya Limited [2018] KEELRC 952 (KLR)", Case Analysis (2018). Cause No. 23 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/952/eng@2018-10-09

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