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ELRCPartially AllowedNot expressly stated on the judgment copy analysed (Employment and Labour Relations Court cause; related causes cited are Nakuru ELRC Cause 791 of 2010 and Cause 764 of 2014)· [2021] KEELRC 867 (KLR)

Kenya Plantation Agricultural Workers Union v Finlays Horticultural (K) Limited & another [2021] KEELRC 867 (KLR)

Employment and Labour Relations Court
28 September 2021
HWHellen Wasilwa
2,657 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court cut an unfair dismissal award after ruling that even valid misconduct cannot justify sacking an employee without a fair hearing.

What this practically means

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Executive summary

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A trade union sued Finlay Horticulture Kenya Limited (now acquired by the 2nd respondent) on behalf of its member, Bernard Onyango Odhiambo, a chief shop steward summarily dismissed in August 2014 for absence from work without permission. The union sought declarations of wrongful and unfair dismissal, reinstatement, or in the alternative conversion of the dismissal to normal termination with notice pay, gratuity, leave, house allowance and up to 12 months' compensation. The respondent denied the recognition agreement, asserted the grievant took unapproved leave, and maintained it mailed a show cause letter to his last known address before dismissing him, with the appeal later rejected. The court framed three issues: validity of the reason for dismissal, due process, and remedies. It held the respondent had a valid reason under sections 43 and 44 of the Employment Act, since the grievant proceeded on leave after permission was denied and never presented the chief's summons when seeking leave. However, on due process, the court found the show cause letter was allegedly mailed to an address that was in fact the chief's address, with no evidence of service, and that dismissal without a hearing breached section 41 and the principle that a person should not be condemned unheard. The dismissal was therefore unfair and unlawful. The court reduced the dismissal to normal termination and awarded Kshs. 120,822/= (nine days' salary, notice pay, accrued leave and ten months' compensation), plus costs and interest.

Key legal issues

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01

Validity of the reason for dismissal

Holding

The respondent had valid reasons to dismiss the grievant because he proceeded on leave without permission, which is gross misconduct under section 44 of the Employment Act.

Reasoning

The dismissal letter cited absence from work without leave. The grievant admitted applying for compassionate leave, which was denied, but proceeded on leave anyway. The chief's summons, which formed the basis of his absence, was never presented to the employer when leave was sought, only surfacing later on appeal. Absence without permission therefore constituted gross misconduct under section 44 and a valid reason under section 43.

p. 4
02

Due process before dismissal

Holding

The dismissal was procedurally unfair because there was no proof the show cause letter was served on the grievant and he was dismissed without a hearing, contrary to section 41 of the Employment Act.

Reasoning

The show cause letter was allegedly mailed to '83 Ombuga', an address the court found was actually the chief's address at Kanyaluo South, not the grievant's. The respondent produced no proof of posting or receipt. Disciplinary action taken on the assumption the letter was received was premised on wrong reasons, and dismissal without a hearing contravened section 41 and section 45(2) of the Employment Act.

p. 4
03

Remedies for unfair dismissal

Holding

The summary dismissal was reduced to normal termination and the grievant awarded days worked, notice pay, accrued leave and 10 months' salary as compensation, with costs and interest.

Reasoning

Having found the dismissal unfair, the court exercised its discretion under the remedies sought to convert the summary dismissal to normal termination, awarding nine days' salary for August 2014 at a monthly salary of Kshs. 9,705, one month's pay in lieu of notice, accrued leave of Kshs. 11,155.17 and compensation of ten months' salary, subject to statutory deductions.

p. 4

Legal principles established

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  • Proceeding on leave without approval amounts to gross misconduct under section 44 of the Employment Act and constitutes a valid reason for dismissal under section 43.
  • An employer who cannot prove service of a show cause letter cannot lawfully dismiss an employee on the premise that it was received; dismissal without a hearing violates the audi alteram partem principle.

Court orders

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  1. 1.The summary dismissal is reduced to a normal termination of employment
  2. 2.Award of days worked in August 2014 for 9 days: Kshs. 2,912/=
  3. 3.One month salary in lieu of notice: Kshs. 9,705/=
  4. 4.Leave due: Kshs. 11,155.17/=
  5. 5.Compensation equivalent to 10 months' salary for unfair dismissal: Kshs. 97,050/=, total Kshs. 120,822/= less statutory deductions
  6. 6.Respondent to pay costs of the suit plus interest from the date of judgment

Authorities

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Legislation

  • Employment Actsection 28(1)
  • Employment Actsections 41(1) and 41(2)
  • Employment Actsection 43
  • Employment Actsection 44
  • Employment Actsection 45(1) and 45(2)
  • Companies Actgeneral registration provisions (referred to)

Cases cited (3)

  • Cherokewa Mrisha –v- Civicon Limited
    [2014] eKLR
  • Loice Otieno –v- Kenya Commercial Bank Limited
    [2013] eKLR
  • Banking Insurance & Finance Union (Kenya) –v- Barclays Bank of Kenya Limited
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act 2007; Labour Relations Act; claim brought by a trade union on behalf of its member)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Plantation Agricultural Workers Union v Finlays Horticultural (K) Limited & another [2021] KEELRC 867 (KLR)", Case Analysis (2021). Not expressly stated on the judgment copy analysed (Employment and Labour Relations Court cause; related causes cited are Nakuru ELRC Cause 791 of 2010 and Cause 764 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/867/eng@2021-09-28

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