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ELRCDismissedNot stated in the judgment as provided· [2018] KEELRC 1813 (KLR)

Kenya Plantation and Agricultural Workers Union v Delmonte (K) Limited [2018] KEELRC 1813 (KLR)

Employment and Labour Relations Court
31 May 2018
NMNzioki wa Makau
1,773 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld a driver's dismissal because his employer followed the law: written show-cause letter, a hearing, and a valid reason for firing him.

What this practically means

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Executive summary

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The Claimant, a union, sued on behalf of the Grievant Masila John Kioko, a driver employed by the Respondent since March 2000 and summarily dismissed following a road accident on 25th February 2015 in which a lorry he was driving toppled while ferrying fellow employees from a seed dip to field 74, causing light injuries. The Claimant alleged unfair and unlawful dismissal, noting the Grievant's 15 years of unblemished service, and sought reinstatement, notice pay, leave dues, gratuity, 12 months' compensation and general damages, following a failed conciliation before the Minister for Labour. The Respondent denied the CBAs and maintained that the Grievant drove carelessly at high speed, carried passengers in the seed tipper against policy without authority, and caused the accident and damage to company property; it also challenged the Claimant's locus standi. The Claimant testified and the Respondent called its security officer, Stephen Nyamoti. The court found that the Grievant was an author of his own misfortune: he carried staff against policy and the accident was attributable to want of care. It further found the Grievant was given a show cause letter, replied to it, and was heard at a disciplinary hearing, satisfying the safeguards of Section 41 of the Employment Act. The claim was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the summary dismissal of the Grievant was fair and lawful

Holding

The dismissal was fair and lawful; the Grievant was the author of his own misfortune by negligently causing the accident while carrying staff in the tipper contrary to policy

Reasoning

The Grievant caused an accident while carrying staff in a seed tipper contrary to policy, injuring himself and others. The Respondent's witness explained the accident could only have resulted from want of care. The Grievant was given a show cause letter, responded to it, and was heard at a disciplinary hearing before dismissal. The court found the safeguards under Section 41 of the Employment Act were followed and the reasons valid.

p. 3
02

Whether procedural fairness under Section 41 of the Employment Act was complied with

Holding

Procedural fairness was complied with through the show cause letter, the Grievant's representations and the disciplinary hearing

Reasoning

The evidence showed the Grievant received a show cause letter, replied to it on 13th March 2015 explaining that the accident was not his fault, and was invited to and heard at a disciplinary hearing on 27th March 2015. The Respondent's submissions, which the court accepted, stressed compliance with Section 41(2). The court found the explanation wanting and the dismissal summary but lawful.

p. 3

Legal principles established

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  • An employer who gives a show cause letter, hears the employee and dismisses for a valid reason complies with the procedural and substantive fairness safeguards under Section 41 of the Employment Act

Court orders

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  1. 1.The Claimant's claim is dismissed
  2. 2.Costs awarded to the Respondent

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 41(2)
  • Employment ActSection 49(1)(c)

Cases cited (4)

  • Banking Insurance and Finance Union (K) v Standard Chartered Bank of Kenya Limited
    [2013] eKLR
  • Alphonse Machanga Mwachanya v Operation 680 Ltd
    [2013] eKLR
  • Amos Ogamba Bosire v Wakenya Pamoja Savings Credit Society Ltd
    [2017] eKLR
  • William Kairitha Gacheru v East Africa Packaging Industries Ltd
    [2016] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction following a certificate of disagreement after conciliation under the Minister for Labour (reference to court on 25th November 2015)

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 and Agricultural Workers Union v Delmonte (K) Limited [2018] KEELRC 1813 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1813/eng@2018-05-31

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