Kenya Union of Sugar Plantation and Allied Workers v Sony Sugar Company Limited [2018] KEELRC 2068 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Validity of reason for termination/summary dismissal
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.
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.
Fair procedure under section 41 of the Employment Act and the CBA
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.
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.
Whether the termination was unfair
Having failed both on proof of valid grounds and on fair procedure, the terminations were unfair.
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.
Legal principles established
#- 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
#- 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.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.Each grievant shall be paid 12 months gross salary as compensation for unfair termination
- 4.Payments of terminal dues to attract interest from the date of filing suit; compensation to attract interest from the date of judgment
- 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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.