Kenya Plantation and Agricultural Workers Union v Cargill Kenya Limited [2021] KEELRC 629 (KLR)
The bottom line
#A Kenyan court ruled Cargill unfairly dismissed two warehouse workers for suspected tea theft, awarding them six months' salary each despite a fair disciplinary process.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the summary dismissal
The grievants were accorded fair procedure under section 41 of the Employment Act - show-cause letters, written replies, disciplinary hearing with union representation, and appeal.
Each grievant received a letter to show cause dated 06.04.2018, replied in writing, was invited to a disciplinary hearing in the presence of the union representative, was informed of a right to appeal, appealed and was heard. The summary dismissal was therefore procedurally fair, though later found substantively unfair.
Substantive justification for the dismissal
The respondent had no valid or genuine reason for the summary dismissals; the termination was unfair in substance.
The only primary eyewitness, RW1, gave testimony at serious variance with his written statement in which he had not recognised the forklift operators. Douglas Giteya's untested statement bore no probative value. The disciplinary committee failed to interrogate all forklift operators and warehouse clerks on duty, and the grievants had a long and clean record of service.
Employer's operational deficiencies
The employer's failure to install CCTV cameras and to institute measures on handling tea sweepings could not be visited upon the employees.
Following the Court's opinion in Grace Gacheri Muriithi v Kenya Literature Bureau, it is unfair labour practice to penalise employees for losses attributable to deficiencies in the employer's operational policies and systems. The investigator had recommended CCTV installation and controls on sweepings, confirming the deficiencies.
Remedies under section 49 of the Employment Act
Each grievant awarded six months' gross salary: Kshs. 145,116.00 for Charles Njuguna and Kshs. 121,206.00 for Josphat Lipuku; other prayers declined.
The Court balanced justice: the grievants had long, clean service and desired to continue in employment, but the respondent had accorded due process and some contracts had lapsed. Other claims lacked evidence and particulars; NSSF claims were time-barred under section 90.
Legal principles established
#- It is unfair labour practice for an employer to visit upon the employee adverse consequences for losses attributable to deficiencies in the employer's operational policies and systems, contrary to Article 41(1) of the Constitution.
- Under sections 43 and 47(5) of the Employment Act the employer bears the burden of establishing that the reasons for termination existed and were valid, and of justifying the grounds for termination.
- An untested witness statement not subjected to examination and cross-examination bears low or no probative value.
Court orders
#- 1.Payment to Charles Njuguna of Kshs. 145,116.00 and to Josphat Lipuku of Kshs. 121,206.00 by 01.12.2021, failing which interest payable at Court rates from the date of judgment until full payment
- 2.The respondent to pay 50% of the claimant's costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court Act, section 12 (first-instance jurisdiction over employment and labour relations disputes; s.12(3)(vii) considered on reinstatement)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Plantation and Agricultural Workers Union v Cargill Kenya Limited [2021] KEELRC 629 (KLR)", Case Analysis (2021). Cause No 14 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/629/eng@2021-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.