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ELRCPartially AllowedCause No. 21 of 2019· [2022] KEELRC 350 (KLR)

Kenya Plantation & Agriculatural Wokdersunion (KPAWU) v Finlays Tea (K) Limited [2022] KEELRC 350 (KLR)

Employment and Labour Relations Court
30 March 2022
OMOnesmus N. Makau
2,679 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled Finlays Tea unfairly dismissed a worker because it couldn't prove the misconduct, but still found the dismissal procedure itself was fair.

What this practically means

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Executive summary

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The Kenya Plantation & Agricultural Workers Union sued Finlays Tea (K) Limited on behalf of grievant William Otochi Sande, a General Worker later transferred to the Engineering Department as a Painter, summarily dismissed on 2.2.2017 for alleged gross misconduct - refusing to alight from a company vehicle lacking a transport requisition card and behaving disrespectfully to the Transport Coordinator on 23.1.2017. The respondent maintained the dismissal was fair, the grievant having been given a show cause letter, a disciplinary hearing and an appeal, and that he had been paid terminal dues. The suit was disposed of by written submissions. The court framed three issues: validity and fairness of the reason for dismissal, procedural fairness, and reliefs. On evidence, the court found the coordinator did not deny the phone conversation in which Pascal confirmed the job card had been handed to him, after which he released the vehicle. The order to alight was therefore not lawful, the refusal was self-defence rather than insubordination, and no witness proved the alleged insults, which were also absent from the show cause letter. The respondent failed to prove a valid and fair reason under sections 43, 45 and 47(5). Procedure, however, was fair under section 41. Judgment was entered for Kshs. 71,970 - two months' notice pay of Kshs. 23,990 and four months' compensation of Kshs. 47,980 - subject to statutory deductions, plus costs and interest. Leave, leave travelling allowance and severance claims were declined for lack of particulars, absence of redundancy and binding pleadings.

Key legal issues

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01

Validity and fairness of the reason for summary dismissal

Holding

The respondent failed to prove on a balance of probability that the grievant committed any offence warranting summary dismissal; the reason was neither valid nor fair

Reasoning

The court found the coordinator did not deny the phone call in which Pascal confirmed he had handed over the grievant's job card, and thereafter released the vehicle. The refusal to alight was not insubordination as the command was not lawful given the valid job card; the alleged insults and rudeness were not proved and were absent from the show cause letter.

p. 3
02

Fairness of the procedure followed

Holding

The procedure was fair - show cause letter, disciplinary hearing attended and defended, and an appeal heard - satisfying sections 41 and 45

Reasoning

Although the summons to the hearing was not produced to confirm whether new charges not in the show cause letter were notified, the grievant admitted attending the hearing and defending himself, and he was heard on his appeal. The court therefore found the dismissal procedurally fair under sections 41 and 45 of the Employment Act.

p. 3
03

Reliefs for unfair termination

Holding

Claimant entitled to notice pay under section 49(1) and clause 24 of the CBA, plus four months' gross salary compensation; leave, LTA and severance claims declined

Reasoning

Having found the dismissal unfair and unlawful, the court awarded two months' salary in lieu of notice (grievant had served over 5 years) and four months' gross salary as compensation considering long service without any warning letter. Leave/LTA lacked particulars, and severance was inapplicable absent redundancy.

p. 4

Legal principles established

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  • An employer bears the burden of proving valid and fair reasons for summary dismissal under sections 43, 45 and 47(5) of the Employment Act; failure to discharge it renders the termination unfair
  • A person in authority must exercise authority fairly and not capriciously; an order to alight from a vehicle where the employee held a valid job card was not a lawful and proper command
  • A general prayer for 'any other relief' does not license the court to grant unpleaded reliefs without notice to the opposite party

Court orders

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  1. 1.Judgment entered for the claimant with award of two months' salary in lieu of notice (Kshs. 23,990)
  2. 2.Award of four months' gross salary as compensation for unfair termination (Kshs. 47,980), total Kshs. 71,970
  3. 3.Award subject to statutory deductions
  4. 4.Costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment Actsection 43
  • Employment Actsection 45
  • Employment Actsection 45(2)
  • Employment Actsection 47(5)
  • Employment Actsection 49(1)
  • Employment Actsection 41
  • Employment Actsection 42(1)
  • Employment Actsection 44(4)
  • Employment Actsection 43(1)
  • Collective Bargaining Agreementsection 25(d) and (e); section 25; clause 24
  • ELRC Procedure RulesRule 28(3)

Cases cited (4)

  • Kenfreight (EA) Limited v Benson K. Nguti
    [2016] eKLR
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • Pamela Nelina Lutta v Mumias Sugar Company Limited
    [2017] eKLR
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over trade disputes under the Labour Relations Act; termination challenged under sections 43, 45, 47(5) and 49(1) of the Employment Act

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 Plantation & Agriculatural Wokdersunion (KPAWU) v Finlays Tea (K) Limited [2022] KEELRC 350 (KLR)", Case Analysis (2022). Cause No. 21 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/350/eng@2022-03-30

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