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ELRCPartially AllowedCause No. 193 of 2015· [2018] KEELRC 2068 (KLR)

Kenya Union of Sugar Plantation and Allied Workers v Sony Sugar Company Limited [2018] KEELRC 2068 (KLR)

Employment and Labour Relations Court
3 May 2018
4,858 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Sony Sugar must pay three unfairly dismissed workers 12 months' salary and full benefits because it failed to prove why it fired them or follow fair procedure.

What this practically means

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Executive summary

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The Kenya Union of Sugar Plantation and Allied Workers, which had a recognition agreement with Sony Sugar Company Limited, claimed on behalf of eight grievants summarily dismissed or terminated following an incident on 25th May 2012 in which the factory siren sounded at an unusual time and employees gathered at the cane yard demanding a promised 20% salary increase. After show cause notices and disciplinary hearings, three grievants were summarily dismissed and five terminated. The union sought reinstatement or conversion to normal termination, terminal benefits, 12 months' pay and costs; the respondent denied unfairness. The court framed three issues: validity of reason, fairness of procedure, and remedies. On validity, it found the respondent failed to discharge its burden under section 43 of the Employment Act: the dismissal letters stated no grounds, the disciplinary minutes covered only two grievants, the investigation report covered only two, and RW1's own evidence showed the siren signified imminent danger so employees could not be blamed for investigating. On procedure, there were no minutes of proceedings, the grievants were not accompanied by a union representative or colleague of their choice, and the respondent breached both section 41 and the CBA's disciplinary clause, which provided for suspension rather than interdiction. The court declared the terminations unfair. Reinstatement was time-barred under the Employment and Labour Relations Court Act, though the court observed the grievants deserved it, having been singled out from over 100 employees who took part. The court converted the summary dismissals into normal termination, awarded terminal dues under the CBA, 12 months' gross salary compensation per grievant, interest, and costs of Kshs.100,000 to the claimant.

Key legal issues

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01

Validity of reason for termination/summary dismissal

Holding

The respondent failed to prove the reasons for termination; the dismissal/termination letters did not state the grounds and no evidence pinned any grievant to any of the charges.

Reasoning

The show cause letters charged the grievants with desertion of duty station, unlawful assembly and causing work disruption. However, the disciplinary minutes covered only two grievants, the investigation report covered only two, and RW1's own evidence confirmed the siren sounded at an unusual time signifying danger, so employees could not be faulted for going to investigate. Section 43 places the burden of proof squarely on the employer, which the respondent fell far short of discharging.

p. 8
02

Fair procedure under section 41 of the Employment Act and the CBA

Holding

The respondent failed to comply with section 41 and its own CBA disciplinary procedure; the grievants were not represented and there were no minutes of proceedings.

Reasoning

Section 41 requires an explanation of the reasons and a hearing in the presence of a fellow employee or shop floor union representative of the employee's choice. No minutes of the disciplinary proceedings were produced, only committee decisions for two grievants, and summonses were not produced. CW1's uncontroverted evidence was that none was accompanied. The CBA provided for suspension rather than interdiction and required proof of the offence. The respondent breached both statutory and contractual procedure.

p. 10
03

Whether the termination was unfair

Holding

Having failed both on proof of valid grounds and on fair procedure, the terminations were unfair.

Reasoning

Section 45(2) of the Employment Act deems termination unfair where the employer fails to comply with fair procedure or to prove the grounds. The court found the respondent failed on both scores and declared the termination of the grievants' employment unfair, entitling them to remedies under section 49 notwithstanding that reinstatement was time-barred.

p. 10

Legal principles established

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  • The employer bears the burden of proving the reason for termination; failing which the termination is deemed unfair under section 43 of the Employment Act.
  • Failure to comply with fair procedure under section 41 and to prove grounds for termination renders termination unfair under section 45(2) of the Employment Act.

Court orders

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  1. 1.The summary dismissal of Johnson Otieno, Ezekiel Olande and Zablon Otina is declared null and void and substituted by an order of normal termination
  2. 2.All the grievants shall be paid normal terminal dues as provided under the Collective Bargaining Agreement including notice, gratuity and any leave due and not taken as at the time of termination of employment
  3. 3.Each grievant shall be paid 12 months gross salary as compensation for unfair termination
  4. 4.Payments of terminal dues to attract interest from the date of filing suit; compensation to attract interest from the date of judgment
  5. 5.The respondent to pay costs to the claimant in the sum of Kshs.100,000 as reasonable expenses to include disbursements and court fees

Authorities

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Legislation

  • Employment ActSection 43
  • Employment ActSection 41
  • Employment ActSection 45(2)
  • Employment ActSection 44(3) and (4)
  • Employment and Labour Relations Court Act
Jurisdiction invoked
Article 162(2) of the Constitution read with the Employment and Labour Relations Court Act (industrial cause filed under the ELRC's employment jurisdiction)

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 Union of Sugar Plantation and Allied Workers v Sony Sugar Company Limited [2018] KEELRC 2068 (KLR)", Case Analysis (2018). Cause No. 193 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2068/eng@2018-05-03

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