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ELRCPartially AllowedCause No 566 of 2010· [2018] KEELRC 1664 (KLR)

Patrick Mayamba & 49 others v Afro Plastics Kenya Limited [2018] KEELRC 1664 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
29 June 2018
ANAbuodha J N
2,605 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that firing 50 factory workers without proving misconduct or hearing them first was unfair, ordering notice pay, gratuity, and compensation.

What this practically means

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Executive summary

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In this first-instance employment claim, three named claimants sued on behalf of 47 others, all former employees of Afro Plastics Kenya Limited and members of the Kenya Chemical Workers Union. They alleged that their services were prematurely and unlawfully terminated in December 2008 - some for refusing to sign new, less favourable contracts and others on allegations of sleeping during night duty - without notice or terminal benefits, and they sought dues computed under the CBA. The respondent contended that the dispute concerned a CBA and required the union, that the joint pleading was defective, and that dismissals followed the CBA: fifteen employees found asleep on night shift declined to give written explanations or appear before a disciplinary panel, others abandoned their contracts or refused renewal, and all dues were paid or available. The court applied sections 43(1), 47(5) and 41 of the Employment Act. It found the respondent produced no evidence of reduced production to substantiate the sleeping allegation, and no evidence that any disciplinary process was conducted before dismissal. Holding the terminations unfair, the court awarded each claimant one month's salary in lieu of notice, service gratuity at 15 days' salary per year of service, and eight months' salary as compensation for unfair termination, subject to taxes and statutory deductions, plus costs of the suit. Counsel were directed to compute the amounts due to each claimant and report to court for recording of final orders, with mention set for 27 September 2018.

Key legal issues

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01

Proof of reasons for termination

Holding

The employer failed to prove the alleged sleeping on duty; no production evidence was adduced to support the allegation, so the termination was unfair

Reasoning

The respondent alleged the claimants were sleeping on night duty and that this affected production, yet produced no evidence of production levels for the period. Section 43(1) requires the employer to prove the reason for termination, and failure renders it unfair. The claimants' denial, that machines were running and no items were damaged, was not displaced.

p. 3
02

Procedural fairness under section 41

Holding

No disciplinary process was conducted; the claimants were dismissed without being heard

Reasoning

Sections 41(1) and 41(2) require the employer to explain the reasons for termination in a language the employee understands and to hear and consider representations before dismissal. Neither documentary nor oral evidence showed the claimants were taken through any disciplinary process, so the dismissals were procedurally unfair.

p. 3
03

Remedies for unfair termination

Holding

Each claimant awarded notice pay, service gratuity at 15 days' salary per year of service, and eight months' salary as compensation

Reasoning

Having found the termination unfair, the court exercised its discretion to award one month's salary in lieu of notice, service gratuity calculated under the CBA rate, and eight months' salary as compensation for unfair termination, subject to taxes and statutory deductions, plus costs.

p. 3

Legal principles established

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  • Under section 43(1) of the Employment Act the employer must prove the reason for termination, failing which the termination is deemed unfair
  • The burden of proving unfair termination lies on the employee, while the burden of justifying the grounds for termination lies on the employer
  • Before termination on grounds of misconduct an employer must explain the reasons to the employee and hear their representations, and failure to hold a disciplinary process renders the termination unfair

Court orders

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  1. 1.Declaration that the claimants' services were unfairly terminated (implied finding that termination was unfair)
  2. 2.Award of one month's salary in lieu of notice to each claimant
  3. 3.Award of service gratuity at the rate of 15 days salary for each year of service
  4. 4.Award of eight months' salary as compensation for unfair termination
  5. 5.Costs of the suit to the claimants
  6. 6.Items (a), (b) and (c) subject to taxes and statutory deductions
  7. 7.Parties' counsel to compute actual amounts due to each claimant and report to court for recording of final order
  8. 8.Matter set for mention on 27.9.2018

Authorities

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Legislation

  • Employment ActSection 43(1)
  • Employment ActSection 47(5)
  • Employment ActSection 41(1)
  • Employment ActSection 41(2) (referred to as subsection 2 of the foregoing section)
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment and Labour Relations Court (claim for unfair termination and terminal dues under the Employment Act)

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, "Patrick Mayamba & 49 others v Afro Plastics Kenya Limited [2018] KEELRC 1664 (KLR)", Case Analysis (2018). Cause No 566 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1664/eng@2018-06-29

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