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ELRCPartially Allowednot stated in the excerpt· [2020] KEELRC 700 (KLR)

Kenya Union of Commercial, Food & Allied Workers v Emuki Sacco Society Limited [2020] KEELRC 700 (KLR)

Employment and Labour Relations Court
14 July 2020
NMNzioki wa Makau
1,923 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a SACCO driver's dismissal unfair because the employer couldn't prove its reasons, awarding him unpaid wages and six months' salary.

What this practically means

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Executive summary

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The Claimant union sued the Respondent SACCO on behalf of its Grievant, Nahashon Njiru, a van driver employed from June 2010 and terminated in January 2017 allegedly for poor performance and low revenue returns on the SACCO van. The Claimant sought reinstatement or, in the alternative, terminal dues including notice pay, underpayment of wages, leave dues and maximum compensation, contending that the Grievant was never warned, never subjected to a disciplinary hearing, and was underpaid and unremunerated for overtime. The Respondent defended the termination, asserting show-cause letters, meetings, payment of December salary and one month's notice, and argued reinstatement was time-barred under Section 12(3)(viii) of the Employment Act. The court held the termination unfair: the employer bore the burden under Section 43 to prove the reasons for termination but adduced no evidence of poor performance and produced no minutes of the meetings in which the Grievant was allegedly heard. The court adopted the Respondent's conceded underpayment figure of Kshs. 287,136.10, noting the Claimant had wrongly applied Nairobi/Mombasa Wages Order rates. Leave dues failed for want of evidence. Reinstatement was refused as more than three years had elapsed, leaving only compensation under Section 49; the court declined maximum compensation and awarded six months' salary at Kshs. 15,239.10 (Kshs. 94,160.40). Judgment was entered for the underpayment, compensation and costs of the suit.

Key legal issues

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01

Whether the termination was unfair for want of valid reason and procedural fairness

Holding

Termination was unfair; the Respondent failed to discharge its burden under Section 43 by adducing no evidence of poor performance and no minutes of the meetings at which the Grievant was allegedly heard.

Reasoning

Section 43 places the burden on the employer to prove the reasons for termination, which must be matters the employer genuinely believed existed at termination. The Respondent alleged poor performance and low van returns but led no evidence. It claimed the Grievant was heard in a series of meetings but produced no minutes. Without such proof the termination is deemed unfair under Section 45, and the procedural safeguards of Section 41 were not demonstrated.

p. 3
02

Remedies: reinstatement and quantum of compensation

Holding

Reinstatement refused as time-barred and impracticable; 6 months' compensation awarded instead of the maximum 12 months, plus underpayment of wages as conceded.

Reasoning

Since the January 2017 dismissal, more than 3 years had passed, making reinstatement untenable under Section 12(3)(viii), leaving only compensation under Section 49. The court found no basis for maximum compensation because the dismissal, though unprocedural, was not egregious. The Respondent conceded underpayment of Kshs. 287,136.10, which the court adopted over the Claimant's higher figure.

p. 3

Legal principles established

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  • Under Section 43 of the Employment Act, the employer bears the burden of proving the reason(s) for termination; failure to do so renders the termination unfair within Section 45.
  • Reinstatement cannot be ordered more than 3 years after termination under Section 12(3)(viii) of the Employment Act.
  • Underpayment calculations must use the wage figures applicable to the correct area classification under the applicable Wages Order, not those of urban municipalities like Nairobi and Mombasa where not applicable.

Court orders

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  1. 1.Judgment entered for the Grievant for underpayment of wages of Kshs. 287,136.10
  2. 2.Judgment entered for the Grievant for 6 months' salary compensation of Kshs. 94,160.40 (at Kshs. 15,239.10 per month)
  3. 3.Costs of the suit awarded to the Claimant/Grievant

Authorities

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Legislation

  • Labour Relations ActSection 52
  • Employment ActSections 31, 41, 43, 45(2), 49
  • Constitution of Kenya 2010Article 50
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 21
  • Employment ActSection 12(3)(viii) (referred to in submissions on reinstatement)

Cases cited (4)

  • Onesmus Kilonzo v Nation Media Group Limited
    [2019] eKLR
  • Nation Media Group Limited v Onesmus Kilonzo
    [2017] eKLR
  • Leonard M. Mudavadi v Managing Trustees of Insurance Training & Education Trust (College of Insurance)
    [2013] eKLR
  • Alexander Githui Gathure v Tarmal Wire Product Limited
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the ELRC (Procedure) Rules 2016 (Rule 21 invoked for determination on pleadings, evidence and submissions)

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 Commercial, Food & Allied Workers v Emuki Sacco Society Limited [2020] KEELRC 700 (KLR)", Case Analysis (2020). not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/700/eng@2020-07-14

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