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ELRCDismissedMemorandum of Claim dated 2nd August 2017 (Cause; number not stated in judgment)· [2018] KEELRC 1910 (KLR)

Kenya Planatation & Agricultural Workers Union v Unilever Tea Kenya Limited [2018] KEELRC 1910 (KLR)

Employment and Labour Relations Court
18 May 2018
DMD. K. Njagi Marete
2,869 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 upheld a driver's dismissal for fuel siphoning because the employer documented its case and followed fair disciplinary procedure.

What this practically means

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Executive summary

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This was a first-instance unfair termination claim brought by the Kenya Plantation & Agricultural Workers Union, a registered trade union with a recognition agreement and CBA with the respondent, on behalf of grievant Nicholas Suguti, a driver at Kimari Factory employed from about April 2007 and summarily dismissed on 28th September 2015 for gross misconduct. The union alleged the grievant was wrongly accused of siphoning fuel after he had lost the fuel tank keys and been moved between work assignments; he answered a show cause letter, attended a disciplinary hearing with a witness, lost his internal appeal, and conciliation before Mr. P.N Macharia ended in a certificate of unresolved dispute. The respondent maintained the grievant was lawfully and fairly dismissed for fuel siphoning and/or careless performance under CBA clauses 24(c) and (g), pointing to his shifting accounts of the lost key and unexplained presence of two men near the siphoned fuel. Deciding the matter on written submissions, the court framed three issues: lawfulness of the termination, entitlement to relief, and costs. Holding that the respondent's case overwhelmingly outweighed the claimant's, the court found the grievant's defence uncoordinated and unrebutted, and concluded the termination was lawful and fair. The entire claim was dismissed, and each party was ordered to bear its own costs. Judgment was delivered on 18th May 2018 by D. K. Njagi Marete, J.

Key legal issues

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01

Whether the summary dismissal of the grievant for suspected fuel siphoning was wrongful, unfair and unlawful

Holding

The termination was lawful and fair; the respondent demonstrated the grievant's culpability and involvement in the fuel siphoning saga which the grievant could not rebut

Reasoning

The court weighed the documentary record, witness statements and the disciplinary minutes. The grievant could not explain the loss of the fuel tank keys, why the loss was not promptly reported, or what two men found near the siphoned fuel were doing. His defence was described as uncoordinated, with changing accounts of where the key was. The respondent established a valid reason and adherence to procedure, answering the first issue in its favour.

p. 5
02

Whether the claimant was entitled to the relief sought, including reinstatement or alternatively monetary compensation

Holding

No; the claim was dismissed in its entirety

Reasoning

Since the court found the termination lawful, the alternative claims (gratuity, house allowance, 12 months' salary, leave, notice pay, damages, certificate of service, costs and interest) fell away. The court therefore dismissed the whole claim and addressed costs, ordering each party to bear its own costs notwithstanding the outcome.

p. 5

Legal principles established

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  • The employer bears the burden of proving the reason or reasons for termination; failure to do so renders the termination unfair under section 45
  • In a complaint of unfair termination the employee bears the burden of proving it, while the employer bears the burden of justifying the grounds

Court orders

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  1. 1.Dismissal of the claim in its entirety
  2. 2.Each party to bear their own costs of the claim

Authorities

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Legislation

  • Employment Act, 2007section 43(1)
  • Employment Act, 2007section 45(1) and (2)(a)
  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 44(4)
  • Collective Bargaining Agreement inter partes signed 25th May 2012clauses 24(c) and 24(g)

Cases cited (2)

  • Kenya plantation & Agricultural Workers Union v. Del Monte Kenya Limited
    [2016]
  • Zephania Nyambane and another v. Nakuru Water & Sanitation Services Company Limited
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over a trade union claim on unfair dismissal (referenced to the Employment Act, 2007); exact enabling provision not stated in the judgment

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 Planatation & Agricultural Workers Union v Unilever Tea Kenya Limited [2018] KEELRC 1910 (KLR)", Case Analysis (2018). Memorandum of Claim dated 2nd August 2017 (Cause; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1910/eng@2018-05-18

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