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ELRCPartially AllowedCause No. 1749 of 2013· [2018] KEELRC 1207 (KLR)

Kenya Building, Construction, Timber and Furniture Industries Employees Union (Kbct & Fiet) v Newline Furniture Limited [2018] KEELRC 1207 (KLR)

Employment and Labour Relations Court of Kenya
18 May 2018
MMM. Mbaru
1,687 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The claimant union, acting for grievant Daniel Orina Nyamboga, sued Newline Furniture Limited for unfair termination. The grievant, employed as a Technician from November 2000 at Kshs.13,858.00 per month, was summoned from his duty station at the United Nations Headquarters in Gigiri to the respondent's Chester House office on 2nd March 2011 and handed a termination letter dated 3rd March 2011 without notice, reasons or a hearing. A conciliator recommended payment of Kshs.88,279.00, which the respondent ignored. The respondent filed no valid defence, earlier responses having been held to be of no legal effect in rulings of 9th July 2015 and 7th November 2017, and did not attend to justify the dismissal. Applying sections 35, 41, 43, 44 and 45 of the Employment Act, 2007, and the principles in Alex Kago v Hebattula Brothers Ltd and Kenya Petroleum Oil Workers Union v Kenya Petroleum Refineries Ltd, the court found the summary dismissal substantively and procedurally unfair. The court awarded compensation of ten months' gross wage (Kshs.135,850.00), one month's pay in lieu of notice (Kshs.13,585.00), two days' unpaid salary (Kshs.1,066.00) and 21 leave days (Kshs.11,193.00), plus costs. The claim for ten months' arrears of underpayment was declined for lack of basis. Judgment was delivered by M. Mbaru J on 18th May 2018 in Nairobi.

Key legal issues

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01

Whether the summary dismissal of the grievant without notice, reasons or hearing was unfair

Holding

The dismissal was unfair for want of both substantive and procedural reasons; the letter of 3rd March 2011 gave no notice, reasons or justification.

Reasoning

The grievant was recalled from his duty station at Gigiri on 2nd March 2011 and handed a termination letter the next day with no reasons given. Sections 41, 43 and 44 of the Employment Act require notice, a hearing and valid reasons before termination, even where misconduct warrants summary dismissal. The respondent filed no defence to justify the action, so the dismissal is unfair under section 45.

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02

Remedies payable on a finding of unfair termination

Holding

Notice pay, unpaid days' salary, earned untaken leave and compensation of ten months' gross wage are awarded; the underpayment claim is declined.

Reasoning

Section 35 allows one month's notice or payment in lieu, awarded at Kshs.13,585.00. Two days' unpaid salary and 21 untaken leave days were confirmed as due. Compensation of ten months' gross wage was granted under section 49 for the unfair termination. The underpayment claim lacked any evidential basis and was rejected.

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Legal principles established

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  • Before termination of employment an employer must observe both substantive and procedural fairness; where no defence is filed, the employer cannot justify a summary dismissal and the remedy is compensation under section 49 of the Employment Act.

Court orders

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  1. 1.Judgment entered for the claimant against the respondent
  2. 2.Compensation of ten months gross wage at Kshs.135,850.00
  3. 3.One month pay in lieu of notice at Kshs.13,585.00
  4. 4.2 days unpaid salary at Kshs.1,066.00
  5. 5.21 leave days pay at Kshs.11,193.00
  6. 6.Costs of the suit awarded to the claimant

Authorities

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Legislation

  • Employment Act, 2007section 35
  • Employment Act, 2007section 41
  • Employment Act, 2007section 41(1)
  • Employment Act, 2007section 41(2)
  • Employment Act, 2007section 43
  • Employment Act, 2007section 44
  • Employment Act, 2007section 45
  • Employment Act, 2007section 49

Cases cited (2)

  • Alex Kago versus Hebattula Brothers Ltd
    [2016] eKLR
  • Kenya petroleum oil workers union versus Kenya petroleum refineries Ltd
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; dispute referred following conciliation)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Building, Construction, Timber and Furniture Industries Employees Union (Kbct & Fiet) v Newline Furniture Limited [2018] KEELRC 1207 (KLR)", Case Analysis (2018). Cause No. 1749 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1207/eng@2018-05-18

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