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ELRCPartially AllowedCause No. 2 of 2018· [2018] KEELRC 1602 (KLR)

Moses Ochieng v Unilever Kenya Limited [2018] KEELRC 1602 (KLR)

Employment and Labour Relations Court of Kenya
29 June 2018
DMD. K. Njagi Marete
2,537 words in judgment
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The bottom line

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A Kenyan court ruled Unilever unfairly dismissed an employee because it skipped mandatory hearing steps, but awarded him far less money than he claimed.

What this practically means

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Executive summary

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The claimant, employed by the respondent as an ungraded employee from 1999 and doubling as a shopsteward, was summarily dismissed on 13th February 2017 for allegedly making a malicious and false report that company property was being misappropriated. He attributed the dismissal to a witch hunt arising from his reporting the distribution of new shoes by the respondent to police officers hired to guard company property during the July 2016 strike, and to his role as a shopsteward. The respondent denied the claim, asserting that the dismissal was for gross misconduct under section 44(4) of the Employment Act and that the claimant was accorded a fair hearing under company policy and the Employment Act. The matter proceeded by written submissions, the parties having agreed on that mode of determination on 18th June 2018. The court framed three issues: whether the termination was wrongful, unfair and unlawful; entitlement to relief; and costs. Applying sections 41, 44, 45(2) and 47(5) of the Employment Act, and authorities relied on by the claimant on the mandatory nature of section 41 procedure, the court found the respondent's case 'overshadowed and overwhelmed on a preponderance of evidence' and held the termination unfair and unlawful. On relief, the court awarded one month's salary in lieu of notice (Kshs.17,981) and six months' salary as compensation for unlawful termination (Kshs.107,886), totalling Kshs.125,867 - far less than the Kshs.4,696,597.74 claimed, which had included gratuity and speculative lost salary to 2036. Costs were awarded to the claimant against the respondent.

Key legal issues

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01

Whether the summary dismissal of the claimant was wrongful, unfair and unlawful

Holding

The termination was unfair and unlawful; the respondent failed to justify the dismissal on valid grounds or fair procedure.

Reasoning

The court weighed the parties' submissions on sections 41, 44(4) and 45(2) of the Employment Act. Although initially agreeing with the respondent's reliance on sections 44(4) and 45(2), the judge held those provisions inapplicable on the facts, finding a 'massive case of injustice' where administrative measures would have sufficed, and the claimant's case outweighed the respondent's on a preponderance of evidence.

p. 4
02

Whether the claimant is entitled to the relief sought

Holding

The claimant was entitled to relief, but the court awarded only one month's salary in lieu of notice and six months' compensation for unlawful termination.

Reasoning

Having found unlawful termination, the court held the claimant entitled to relief. However, the quantum awarded (Kshs.125,867.00) fell far short of the Kshs.4,696,597.74 claimed; heads such as gratuity, lost salary to 2036, unpaid leave, transport allowance and end-month pay were not granted.

p. 4

Legal principles established

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  • An employer bears the burden of proving both a valid reason for termination and that fair procedure under section 41 of the Employment Act was followed; failure to do so renders the termination unfair.
  • Section 41 of the Employment Act is mandatory and requires an explanation to the employee in the presence of a chosen witness, and consideration of the employee's representations, before dismissal.

Court orders

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  1. 1.One (1) month's salary in lieu of notice - Kshs.17,981.00
  2. 2.Six (6) months' salary as compensation for unlawful termination of employment - Kshs.107,886.00
  3. 3.Total award of Kshs.125,867.00
  4. 4.The costs of the claim to be borne by the respondent

Authorities

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Legislation

  • Employment Act, 2007section 45(2)(a), (b), (c)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 44(4)(a)
  • Employment Act, 2007section 47(5)
  • Occupational Safety and Health Act

Cases cited (2)

  • Gilbert Mariera Makori vs. Equity Bank Limited
    [2016] eKLR
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    (2014) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (cause of unfair and unlawful summary dismissal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (17)

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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, "Moses Ochieng v Unilever Kenya Limited [2018] KEELRC 1602 (KLR)", Case Analysis (2018). Cause No. 2 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1602/eng@2018-06-29

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