Kenya Union Of Commercial, Food And Allied Workers Union v Vishnu Enterprises [2021] KEELRC 417 (KLR)
The bottom line
#A Kenyan employer who gave no reasons for firing a driver was ordered to pay him Kshs 75,000, but reinstatement was refused because six years had passed.
What this practically means
#Executive summary
#Key legal issues
#Existence of an employment relationship
An employment relationship existed between the grievant and the respondent despite the absence of a letter of appointment, as established by the respondent's advocate's letter referring to the grievant as an 'employee' and to notice and leave
Although the grievant produced no letter of appointment, a letter authored by the respondent's advocate described him as an employee and referenced notice and leave, terms commonly used in employment relationships. The court inferred from the spirit of the letter that an employer-employee relationship existed between the parties.
Whether the termination was wrongful and unlawful
The termination was unfair and unlawful because the respondent proved neither valid reasons for termination nor compliance with procedural fairness under sections 41, 43(1) and 45(2) of the Employment Act
The respondent merely denied the claim, advanced no reason for the termination, and did not appear to testify. Under sections 43(1) and 45(2) of the Employment Act the burden lay on the employer to prove valid reasons and fair procedure, including notifying the grievant of reasons in the presence of another employee or union representative. No evidence of this was tendered, so the dismissal was unfair and unlawful.
Entitlement to one month's salary in lieu of notice
The grievant was entitled to one month's salary in lieu of notice under section 35(1)(c) of the Employment Act as he was employed on a monthly salary
Section 44(2) prohibits summary dismissal without notice, while section 35(1)(c) provides for mandatory one month's notice for monthly salaried employees. Given the unlawful termination, the court found the grievant entitled to one month's salary in lieu of notice.
Compensatory damages for unfair termination
Compensatory damages equivalent to two months' gross salary were awarded, informed by the roughly one-year length of employment
Having found the dismissal unfair, the court exercised discretion to award compensatory damages equivalent to two months' gross salary, taking into account that the employment relationship lasted about one year.
Legal principles established
#- An employer bears the burden of proving valid reasons for termination and procedural fairness; failure to discharge this burden renders the termination unfair
- Gross monthly pay comprises basic pay together with house allowance
Court orders
#- 1.Judgment entered in favour of the claimant for Kshs 75,000.00 comprising 2 months' salary in compensation (Kshs 50,000.00) and 1 month's salary in lieu of notice (Kshs 25,000.00)
- 2.The award to attract interest at court rates from the date of judgment until payment in full
- 3.The respondent to bear the costs of the claim
- Jurisdiction invoked
- Article 162(2) of the Constitution establishing the Employment and Labour Relations Court; section 12(3) of the Employment and Labour Relations Court Act (reinstatement jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Miriti v Co-operative Bank Kenya Limited (Cause 1215 of 2018) [2023] KEELRC 2452 (KLR)[2023] KEELRC 2452 (KLR)13 Oct 2023
Cite this brief
#Cite this brief
Caselaw, "Kenya Union Of Commercial, Food And Allied Workers Union v Vishnu Enterprises [2021] KEELRC 417 (KLR)", Case Analysis (2021). Cause No 2030 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/417/eng@2021-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.