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ELRCPartially AllowedCause No. 96 of 2015· [2018] KEELRC 1601 (KLR)

Kenya Plantation & Agricultural Workers Union v Unilever Kenya Limited [2018] KEELRC 1601 (KLR)

Employment and Labour Relations Court of Kenya
29 June 2018
2,733 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled Unilever unfairly dismissed 18 workers without proper hearing, awarding notice pay, compensation and costs.

What this practically means

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Executive summary

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The Kenya Plantation & Agricultural Workers Union, a registered trade union, sued Unilever Kenya Limited on behalf of 18 grievants summarily dismissed on 15th November 2011 for allegedly fraudulently obtaining sick-off forms in collusion with a member of the respondent's medical department. The claimant sought reinstatement or, in the alternative, terminal dues (gratuity, notice pay, annual leave travelling allowance), 12 months' salary as compensation for wrongful termination, and costs. The respondent relied on clauses 24 and 30 of the parties' Collective Bargaining Agreement, asserting that an audit and investigation established fraudulent sick-offs, and that the grievants were given fair hearings attended by shop stewards before summary dismissal. The matter was determined on written submissions, the court framing three issues: lawfulness of the termination, entitlement to relief, and costs. The court found the claimant's case overwhelming, noting contradictions in the respondent's evidence, including admissions that the sick sheets originated from the designated medical centre. Relying on section 41 of the Employment Act, 2007 and the Mary Chemweno Kiptui authority, it held the disciplinary procedure mandatory and found the grievants were never issued show cause letters nor afforded proper disciplinary hearings; the memoranda inviting them to meetings did not qualify. The termination was therefore unlawful and unfair. On relief, the court departed from prior practice of refusing to compute awards where monthly emoluments were not pleaded, invoking section 10(2) of the Employment Act and Article 22(3)(b) of the Constitution. It awarded one month's notice pay and eight months' compensation, directed the Commissioner of Labour to compute the sums with the parties within 120 days, and awarded costs to the claimant.

Key legal issues

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01

Whether the summary dismissal of the 18 grievants was wrongful, unfair and unlawful

Holding

The termination was unfair and unlawful for want of procedural fairness; the grievants were not issued show cause letters or afforded a proper hearing.

Reasoning

The court found contradictions in the respondent's evidence, including admissions that the sick sheets came from the designated medical centre, which weakened the respondent's case. Relying on section 41 of the Employment Act and the authority in Mary Chemweno Kiptui v Kenya Pipeline Company Limited, the court held that the disciplinary procedure is mandatory and admits of no deviation. The internal memoranda inviting grievants to meetings did not amount to show cause letters or invitations to disciplinary hearings. Absence of procedural fairness rendered the dismissals unfair.

p. 4
02

Whether the claimant is entitled to the relief sought despite not pleading the grievants' monthly emoluments

Holding

Yes. The claimant, having succeeded on unlawful termination, is entitled to relief; the court departed from past practice of leaving relief uncomputed where emoluments were not pleaded.

Reasoning

The court invoked section 10(2) of the Employment Act, which burdens the employer with particulars of remuneration, and Article 22(3)(b) of the Constitution, which requires minimal formality in enforcement of rights. It held it would be unfair to penalise a litigant for lack of data not in their possession, and ordered the Commissioner of Labour to compute the relief with the parties' involvement and file a report within 120 days.

p. 4
03

Who bears the costs of the claim

Holding

The respondent bears the costs of the cause.

Reasoning

Having found the termination unlawful and the claimant entitled to relief, the court made a costs order against the respondent as the losing party.

p. 5

Legal principles established

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  • Compliance with the procedural requirements of section 41 of the Employment Act before termination is mandatory and admits of no deviation; a termination following a flawed process without a hearing is unfair.
  • A court should not penalise a successful litigant for failing to plead monthly emoluments where the employer bears the statutory burden under section 10 of the Employment Act to provide particulars of remuneration; the court may depart from past practice and have relief computed by the Commissioner of Labour.

Court orders

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  1. 1.One (1) month's salary in lieu of notice
  2. 2.Eight (8) months' salary as compensation for unlawful termination of employment
  3. 3.The Commissioner of Labour be and is hereby ordered to, with the involvement of the parties, compute relief in (i) and (ii) above and file a report to court within 120 days
  4. 4.Mention on 31st October, 2018 for a report on computation
  5. 5.The costs of this cause shall be borne by the respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 22(3)(b)
  • Employment Act, 2007section 41(1) and 41(2)
  • Employment Act, 2007section 44(3) and (4)
  • Employment Act, 2007section 45(1), (2)
  • Employment Act, 2007section 10(2)(h), (i), (j), (k)
  • Trade Unions Act
  • Collective Bargaining Agreement (parties)clauses 24 and 30

Cases cited (2)

  • Kenya Union of Commercial Food And Allied Workers v Meru North Farmers Sacco Limited
    [2014] eKLR
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    (2014) eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment and Labour Relations Court (Cause No. 96 of 2015, claim under the Employment Act, 2007)

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 Unilever Kenya Limited [2018] KEELRC 1601 (KLR)", Case Analysis (2018). Cause No. 96 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1601/eng@2018-06-29

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