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ELRCPartially AllowedNot stated in the judgment as provided· [2018] KEELRC 1468 (KLR)

Kenya Plantation & Agricultural Workers Union v Del Monte (K) Limited [2018] KEELRC 1468 (KLR)

Employment and Labour Relations Court
9 July 2018
NMNzioki wa Makau
1,808 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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Kakuzi's driver of 34 years won his unfair dismissal case after a road accident, with the court converting his summary dismissal into a normal termination with full dues.

What this practically means

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Executive summary

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The Claimant union sued on behalf of its Grievant, Abdi Ndege, a driver employed by the Respondent for 34 years, who was summarily dismissed after a road accident on 2nd March 2015 involving tractor no. 778 and a third-party saloon car. The Grievant asserted the saloon car driver, apparently under the influence of alcohol, indicated one turn and made the opposite one, hitting the tractor. The Respondent blamed the Grievant for negligence, invoking res ipsa loquitur and asserting that the dismissal followed due process under Section 44(4)(c) of the Employment Act and the parties' CBA. The Respondent called no witness. The court framed two issues: whether the dismissal was fair and lawful, and whether the Grievant was entitled to the reliefs sought. Holding that the summary dismissal was not called for - the Grievant was not charged with careless driving and no damage to the tractor was shown, and the dismissal appeared designed to deny the Grievant his dues after 34 years of unblemished service - the court found the reasons unfair and the dismissal unlawful under Sections 43 and 45 of the Employment Act. The summary dismissal was reduced to normal termination with notice; the Respondent was ordered to pay terminal dues without loss of benefits, and to compute leave based on untaken leave days and allowances. The claim for salaries for the period of non-employment was refused. Costs were awarded to the Claimant.

Key legal issues

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01

Whether the summary dismissal of the Grievant for alleged gross negligence in causing a road accident was substantively fair and lawful

Holding

The summary dismissal was not justified; the Grievant was not charged with careless driving, no damage to the tractor was shown, and the dismissal appeared designed to deny him his dues after 34 years of unblemished service. It was reduced to normal termination with notice.

Reasoning

The court found the Respondent blamed the Grievant for the accident but did not charge him with the offence of careless driving nor indicate any damage to its tractor. The Grievant had 34 years of service without blemish, and the dismissal appeared designed to defeat his terminal dues. Under Sections 43 and 45 of the Employment Act the reasons were not fair, rendering the dismissal unlawful; equity required reduction to normal termination with notice and payment of full terminal dues.

p. 3
02

Whether the Grievant was entitled to salaries for the period he was not employed

Holding

The claim for salaries for the period of non-employment failed because the Grievant did not render service during that period.

Reasoning

The Claimant did not prove entitlement to salaries for the period after dismissal. The court reasoned that payment for work not performed would be unusual since the Grievant did not render any service following his dismissal. This head of relief was therefore refused while the rest of the alternative prayers were granted through terminal dues on normal termination.

p. 3

Legal principles established

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  • An employer must have fair and valid reasons for termination; a dismissal geared to deny an employee long-service dues is unlawful under Sections 43 and 45 of the Employment Act.
  • Where summary dismissal is unjustified, the court may reduce it to normal termination with notice and award terminal dues without loss of benefits.

Court orders

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  1. 1.The Respondent's summary dismissal of the Grievant is reduced to normal termination with notice
  2. 2.The Respondent to pay the Grievant his terminal dues as it would have after a normal termination of employment without loss of benefits
  3. 3.The Grievant's leave to be computed by the Respondent based on leave days not taken as well as the allowances due
  4. 4.The Claimant to have the costs of the suit

Authorities

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Legislation

  • Employment ActSection 43(1), Section 44(4)(c), Section 45(1) and (2)

Cases cited (4)

  • Kenya Plantation & Agricultural Workers Union v Del Monte Kenya Limited
    [2016] eKLR
  • Zephania Nyambane v Nakuru Water & Sanitation Services Company Limited
    [2013] eKLR
  • John Rioba Maugo v Riley Falcon Security Services Ltd
    [2016] eKLR
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Co. Limited
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the Labour Relations Act (as the employment dispute was reported to the Minister for Labour and conciliation failed); no specific constitutional provision cited

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 Plantation & Agricultural Workers Union v Del Monte (K) Limited [2018] KEELRC 1468 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1468/eng@2018-07-09

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