Kenya Shoe And Leather Workers Union v H. R. Strategic Partners Limited [2018] KEELRC 1279 (KLR)
The bottom line
#A Kenyan court ruled a machine operator's firing was unfair because his employer gave no hearing, no reasons, and no dismissal letter.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the termination
The termination was procedurally unfair because the grievant was neither given a hearing nor issued with reasons for termination
The respondent admitted it did not issue a show cause letter, did not call the grievant to inform him of the termination, and reported nothing to the Labour Officer. There was also no letter of summary dismissal to support the Section 44(3) defence. Compliance with Sections 41, 43 and 45 of the Employment Act was therefore absent, rendering the dismissal unfair.
Substantive fairness of the termination
The termination was substantively unfair as no valid reasons for it were proved
The respondent alleged gross misconduct based on absconding duty, changing shifts without authority and prior warnings, but no letter assigning reasons was ever issued to the grievant and the allegation that he failed to report from 22nd November 2010 was not communicated to him. The court found the termination failed the substantive test under Section 45(2).
Entitlement to terminal dues
The grievant was entitled to notice pay, service pay and accrued annual leave
The employer admitted it did not remit NSSF contributions, justifying service pay at 15 days per year for the two years worked. The employer failed to prove the grievant took leave, so leave for the full 29 months of service was computed at 50.75 days. One month's notice pay was awarded on the basis of the monthly salary of Kshs.8,710.
Quantum of compensation under Section 49
Compensation of three months' salary was appropriate in the circumstances
In exercising discretion the court considered the circumstances under which the grievant was terminated, his length of service of about two years, and all other relevant factors, awarding Kshs.26,130 instead of the twelve months' salary sought by the claimant.
Legal principles established
#- Termination of employment without a hearing and without a letter assigning reasons is unfair both substantively and procedurally under Section 45(2) of the Employment Act
- Summary dismissal cannot be proved in the absence of a letter of summary dismissal issued to the employee
- An employer who has not enrolled employees with NSSF is liable to pay service pay on termination
Court orders
#- 1.Declaration that the termination of the grievant's employment was unfair
- 2.Award of notice pay of Kshs.8,710.00
- 3.Award of service pay of Kshs.8,710.00
- 4.Award of annual leave of Kshs.17,001.25
- 5.Award of compensation of Kshs.26,130.00 (total Kshs.60,551.25)
- 6.Issuance of a certificate of service
- 7.Costs in the sum of Kshs.30,000 all inclusive to the claimant
- 8.Interest at court rates from date of judgment to date of payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act (Sections 34, 41, 43, 44(3), 45(2)) as invoked by the parties; no constitutional provision stated
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Shoe And Leather Workers Union v H. R. Strategic Partners Limited [2018] KEELRC 1279 (KLR)", Case Analysis (2018). Cause No 1383 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1279/eng@2018-08-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.