John Otieno Uyoma & 3 others v Chemartin Tea Co. Ltd [2018] KEELRC 2537 (KLR)
The bottom line
#A Kenyan court ruled that even employees accused of strike-related misconduct must be heard before dismissal, awarding them Kshs.138,970 each.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal for allegedly organising and inciting an unlawful strike was substantively and procedurally fair
The dismissal was unfair; the employer, having filed no defence, failed to prove the reasons for termination and to demonstrate any fair process before summary dismissal
The termination letter alleged the claimants organised and incited an unlawful strike, which are serious allegations. In the absence of any defence or evidence from the respondent, there was nothing to show how the allegations were arrived at or that the claimants were heard. Section 44 permits summary dismissal but section 41(2) still requires a hearing, and section 43 places the burden of proving reasons on the employer, failing which termination is deemed unfair under section 45.
Remedies flowing from unfair and unprocedural summary dismissal
Compensation of 10 months' gross pay (Kshs.110,000.00) and one month's notice pay (Kshs.11,000.00) under section 35 were awarded, plus unpaid salaries of Kshs.17,970.00
Having found the summary dismissal unfair, compensation was due and 10 months' gross pay was considered appropriate. Because the dismissal was unprocedural, notice pay was due under section 35 of the Employment Act. Unpaid salary for April 2017 and the 19 days worked in May 2017 was also awarded as it was due and owing at termination.
Whether the claims for underpayment and leave allowances were proved
Both claims were declined for lack of particulars and evidence quantifying the amounts due
Although written submissions were filed, parts were illegible and the claimants' evidence did not address underpayment beyond citing the applicable Wage Regulations. The leave allowance claim was not covered by the Employment Act's provisions on annual leave and had to be anchored in a written contract or CBA, none of which was produced quantifying the entitlement.
Legal principles established
#- The burden rests on the employer to prove reasons for termination and demonstrate that such reasons were valid and fair; failure to do so renders termination unfair under section 45 of the Employment Act, 2007
- Even in cases of gross misconduct warranting summary dismissal, the employer must comply with the procedural requirement of hearing the employee under section 41(2) of the Employment Act
- Where an employer fails to enter appearance or file a defence despite service of summons, the court decides on the material available and the failure cannot be visited upon the claimant
Court orders
#- 1.Declaration that the summary dismissal of the claimants was unfair
- 2.Notice pay awarded at Kshs.11,000.00
- 3.Unpaid salaries awarded at Kshs.17,970.00
- 4.Compensation for unfair termination awarded at Kshs.110,000.00 (10 months' gross pay)
- 5.Costs of the suit awarded to the claimants
- 6.Orders above to apply in all the consolidated files (Causes Nos. 100, 101, 102 and 103 of 2017)
- Jurisdiction invoked
- Employment and Labour Relations Court (Procedure) Rules, 2016, Rule 23 (consolidation); Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Otieno Uyoma & 3 others v Chemartin Tea Co. Ltd [2018] KEELRC 2537 (KLR)", Case Analysis (2018). Cause No. 100 of 2017 (Consolidated with Causes Nos. 101, 102 and 103 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2537/eng@2018-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.