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ELRCPartially AllowedMemorandum of claim dated 20th July 2016· [2022] KEELRC 197 (KLR)

Kenya Union of Commercial, Food and Allied Workers Union v Frigoken Limited [2022] KEELRC 197 (KLR)

Employment and Labour Relations Court
14 April 2022
JGJacob Gakeri
3,516 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An employer who fires a worker without a proper disciplinary hearing loses in court, even if the reason for dismissal was valid.

What this practically means

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Executive summary

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The Claimant union, under a recognition agreement effective 1st January 2015, sued on behalf of the grievant Mary Munyoki, a packer employed from 1st June 2001, summarily dismissed on 17th November 2014 after a glass jar broke on the production line, on grounds she neglected her duties and failed to follow the jar breakage procedure. The conciliator upheld the dismissal; the union filed a memorandum of claim on 20th July 2016 seeking reinstatement, re-engagement or, in the alternative, notice pay, 17 days' wages, leave dues, leave travelling allowance and maximum twelve months' compensation. The Respondent contended the grievant was trained on the procedure, replaced the broken jar with two suspect jars as CCTV showed, and was validly dismissed under Section 44(4)(c) of the Employment Act after a disciplinary hearing she attended with a shop steward. The Court found the reason for dismissal valid but the process unfair: the Respondent produced no minutes or record of the alleged disciplinary hearing and could not show the grievant was invited or notified of her right to be accompanied, contrary to Section 41. Reinstatement and re-engagement were unavailable as more than three years had elapsed. The Court awarded notice pay, 17 days worked, five days' pending leave, five months' salary compensation (noting the grievant's long service, clean record and substantial contribution to the dismissal), costs to the Claimant and interest from judgment. The leave travelling allowance claim was declined for want of evidence. Judgment delivered virtually at Nairobi on 14th April 2022 by Dr. Jacob Gakeri, Judge.

Key legal issues

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01

Whether the reason for dismissal was valid

Holding

The reason was valid: the grievant failed to follow the mandatory jar breakage procedure, engaging Section 44(4)(c)

Reasoning

The grievant had been trained on the jar breakage procedure requiring her to notify the supervisor immediately. CCTV footage showed suspect jars returned to the line. The Respondent packaged French beans for export where product safety was elemental. Under Section 43(2), the employer's genuine belief at the time of termination governs. The Court found the procedure was not followed owing to the grievant's omission and that dismissal was justified under Section 44(4)(c) on wilful neglect or careless performance.

p. 4
02

Whether the dismissal was procedurally fair

Holding

The dismissal was procedurally flawed and unfair for want of a disciplinary hearing under Section 41

Reasoning

The grievant denied being invited to a disciplinary hearing. The Respondent's witness admitted minutes of the alleged hearing were not on record. Applying the rule that he who alleges must prove, the Respondent failed to prove it invited the grievant or afforded her the right to be accompanied. The Court found the summary dismissal was unfair within the meaning of Section 45.

p. 5
03

Quantum of compensation

Holding

Five months' salary compensation awarded under Section 49(1)(c)

Reasoning

The Court considered the grievant's 13 years 5 months of service, her clean disciplinary record, the shop steward's appeal, and her substantial contribution to the dismissal. Taking these factors into account, the equivalent of five months' salary was held fair, rather than the maximum twelve months claimed.

p. 6

Legal principles established

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  • Termination of employment must satisfy both substantive justification and procedural fairness to be fair under Section 45 of the Employment Act
  • The employer bears the burden of proving compliance with the procedural requirements of Section 41, and absent minutes or records of a disciplinary hearing, allegations of a hearing cannot be sustained

Court orders

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  1. 1.One month's salary in lieu of notice
  2. 2.17 days worked in the month of November 2014 (Kshs.12,070/-)
  3. 3.5 days pending leave days (Kshs.6,390/-)
  4. 4.Equivalent of five (5) months' salary compensation for unfair dismissal
  5. 5.Costs of the suit to the Claimant
  6. 6.Interest at court rates from the date of judgment till payment in full

Authorities

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Legislation

  • Employment Act, 2007Sections 41, 43, 43(2), 44, 44(4)(c), 45, 45(2), 45(2)(c), 47(5), 49(1)(c), 49(3)(a) and (b)
  • Employment and Labour Relations Court Act, 2011Section 12(3)(vii)
  • Constitution of Kenya, 2010Articles 50, 159(2)(d), 48
  • Evidence Actburden of proof rule
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (4)

  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Kenya Postal Corporation of Kenya v Andrew K. Tanui
    [2019] eKLR
  • George Morara Nyakioba v Mini Bakeries (Nairobi) Limited
    [2016] eKLR
  • National Union of Mine Workers and Another and the Commission for Conciliation, Mediation and Arbitration
    Case No. JR 2512 of 2007
Jurisdiction invoked
Employment and Labour Relations Court Act, 2011, Section 12 (unfair termination claims under the Employment Act, 2007)

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 and Allied Workers Union v Frigoken Limited [2022] KEELRC 197 (KLR)", Case Analysis (2022). Memorandum of claim dated 20th July 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/197/eng@2022-04-14

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