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ELRCPartially AllowedCause No. 560 of 2013· [2018] KEELRC 1330 (KLR)

Kenya Union of Commercial Food and Allied Workers v Kenya Meat Commission [2018] KEELRC 1330 (KLR)

Industrial Court of Kenya at Nairobi
25 July 2018
DMD. K. Njagi MareteMOMaureen Onyango
2,446 words in judgment
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The bottom line

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Kenya Meat Commission was ordered to pay a dismissed worker Kshs.179,092 because it had no evidence of a fair disciplinary hearing before firing him for theft.

What this practically means

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Executive summary

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The Kenya Union of Commercial Food and Allied Workers sued Kenya Meat Commission on behalf of grievant Paul Mwaura Njuguna, an Operator Grade 9 employed on 17th June 2006 under successive fixed-term contracts and dismissed on 5th May 2010 for allegedly stealing meat. The claimant's case was that the grievant had taken one kilogramme of meat from the cut beef department intending to pay at the mini-shop, and was beaten by a security supervisor before payment, after which a handwritten admission of theft was forced from him. The claimant pleaded violations of sections 41(1), 43(1) and (2) of the Employment Act, 2007, and sought reinstatement or, alternatively, notice pay, accrued dues, overtime, gratuity, 12 months' compensation and general damages. The respondent denied the claim, asserting the dismissal was for confessed gross misconduct under clause 13 of the contract and section 44(4)(g) of the Employment Act, and questioned the claimant's locus standi and the applicability of the CBA. The court framed three issues: whether the termination was wrongful, unfair and unlawful; entitlement to relief; and costs. Finding that the respondent produced no evidence of disciplinary proceedings and merely cited sections 41 and 44(4)(g), the court held the termination wrongful, unfair and unlawful. The claim was allowed with an award of Kshs.179,092.00 comprising notice pay, 5 days worked, 32 days outstanding leave and 12 months' compensation, with costs to the claimant. Reinstatement and the other alternative heads were not awarded.

Key legal issues

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01

Whether the summary dismissal of the grievant for alleged theft was wrongful, unfair and unlawful

Holding

The dismissal was wrongful, unfair and unlawful because the respondent failed to prove compliance with sections 41 and 43 of the Employment Act, 2007, producing no evidence of any disciplinary proceedings

Reasoning

The respondent relied on section 41 and section 44(4)(g) of the Employment Act asserting justified dismissal for confessed gross misconduct. However, the court found that the respondent produced no evidence of disciplinary proceedings involving the grievant, and therefore failed to discharge the burden of demonstrating substantive and procedural fairness. On a balance of probability, the claimant's evidence prevailed.

p. 4
02

Entitlement to relief following a finding of unlawful termination

Holding

The claimant was entitled to the relief sought, comprising notice pay, days worked, outstanding leave and 12 months' compensation

Reasoning

Having succeeded on liability for unlawful termination, the claimant became entitled to relief. The court awarded one month's salary in lieu of notice, 5 days worked in May 2010, 32 days outstanding leave, and the maximum 12 months' salary as compensation for unlawful termination, totalling Kshs.179,092.00, with costs to the claimant.

p. 4

Legal principles established

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  • An employer alleging summary dismissal for gross misconduct must prove compliance with procedural and substantive fairness under sections 41 and 43 of the Employment Act, 2007; mere citation of statutory provisions without evidence of disciplinary proceedings does not suffice

Court orders

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  1. 1.Payment of one month's salary in lieu of notice of Kshs.13,000.00
  2. 2.Payment of 5 days worked in May 2010 of Kshs.2,097.00
  3. 3.Payment of outstanding leave of 32 days of Kshs.9,995.00
  4. 4.Payment of 12 months salary as compensation for unlawful termination of employment of Kshs.154,000.00
  5. 5.Total award of Kshs.179,092.00
  6. 6.The costs of the claim to be borne by the respondent

Authorities

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Legislation

  • Employment Act, 2007section 41(1)
  • Employment Act, 2007sections 43(1) and (2)
  • Employment Act, 2007section 45
  • Employment Act, 2007section 44(4)(g)
  • CAP 226Clause 17 (as cited in grievant's contract of employment)

Cases cited (1)

  • Mkala Chitavi v Malindi Water & Sewarage Co. Ltd
    (2013) eKLR
Jurisdiction invoked
Industrial Court of Kenya jurisdiction under the Industrial Court Act over employment and labour relations disputes (referenced via Employment Act, 2007); specific constitutional provision not cited in the judgment

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 Union of Commercial Food and Allied Workers v Kenya Meat Commission [2018] KEELRC 1330 (KLR)", Case Analysis (2018). Cause No. 560 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1330/eng@2018-07-25

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