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ELRCPartially AllowedCause No. 47 of 2017· [2018] KEELRC 1983 (KLR)

Kenya Plantation and Agricultural Workers Union v Unilever Tea (K) Limited [2018] KEELRC 1983 (KLR)

Employment and Labour Relations Court of Kenya
18 May 2018
DMD. K. Njagi Marete
2,607 words in judgment
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The bottom line

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A Kenyan court ruled Unilever Tea unfairly dismissed a worker because the company could not prove its reasons or produce records of a fair disciplinary process.

What this practically means

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Executive summary

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The Kenya Plantation & Agricultural Workers Union, a registered trade union with a recognition agreement and CBA with Unilever Tea (K) Limited, claimed that the summary dismissal of its grievant, Alfred Ochieng, on 23rd October 2014 for gross misconduct was unlawful, unfair and illegal. The grievant, employed since 2011 and earning Kshs.10,378.00 monthly, was dismissed after an off-duty period during which his team leader allegedly required him to report back; he sought to take casual leave by telephone when late, was subjected to a show-cause letter, a disciplinary hearing and a failed appeal, after which conciliation directed by the Minister also failed. The union sought reinstatement with full back pay and leave dues, or alternatively gratuity, twelve months' salary, leave, notice pay, damages and costs. The respondent denied unlawful termination, asserting lawful summary dismissal under section 44(4) of the Employment Act after due process. The court identified three issues: lawfulness of the termination, entitlement to relief, and costs. It found the respondent failed to prove valid reasons for termination - the grievant was on entitled off duty - and that the respondent's failure to file the disciplinary proceedings prevented any assessment of compliance with section 41 on procedural fairness. The court held the termination unlawful and awarded two months' salary in lieu of notice (Kshs.20,756.00) and six months' salary as compensation (Kshs.62,268.00), totalling Kshs.83,024.00, with costs to the respondent. Judgment was delivered by D.K.N. Marete, J on 18th May 2018.

Key legal issues

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01

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

Holding

Yes - the termination was unlawful; on a balance of probability the respondent failed to prove valid reasons and did not furnish disciplinary proceedings to demonstrate compliance with section 41.

Reasoning

The respondent alleged the grievant absented himself from work, but the claimant showed he was on entitled off duty. The respondent did not tender evidence of the supervisor's instructions to report back, nor a copy of the disciplinary proceedings, so the court could not assess compliance with substantive and procedural fairness under sections 43, 45 and 41 of the Employment Act.

p. 4
02

Whether the claimant is entitled to the relief sought

Holding

Partially - the court awarded two months' salary in lieu of notice and six months' salary as compensation for unfair termination, totaling Kshs.83,024.00, rather than reinstatement or the full package claimed.

Reasoning

Having succeeded on unlawful termination, the claimant was entitled to relief; the court elected notice pay and compensation under its discretion, and awarded costs to the claimant union.

p. 4

Legal principles established

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  • An employer bears the burden of proving valid and fair reasons for termination, and failure to file disciplinary proceedings disadvantages its case on procedural fairness under section 41 of the Employment Act.

Court orders

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  1. 1.Two (2) months salary in lieu of notice, Kshs.20,756.00
  2. 2.Six (6) months salary as compensation for unlawful termination of employment, Kshs.62,268.00
  3. 3.Total award of Kshs.83,024.00
  4. 4.Costs of the claim borne by the respondent

Authorities

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Legislation

  • Employment Act, 2007section 43(1)
  • Employment Act, 2007section 45(1), (2)(a), (5)
  • Employment Act, 2007section 44(4)(a)
  • Employment Act, 2007section 41
  • Evidence Act, Cap 80 Laws of Kenyasection 107

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 under the Employment Act, 2007 over unlawful/unfair termination of employment

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 Unilever Tea (K) Limited [2018] KEELRC 1983 (KLR)", Case Analysis (2018). Cause No. 47 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1983/eng@2018-05-18

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