Gold Crown Foods (EPZ) Ltd v Esther Wasili Kisau [2022] KEELRC 621 (KLR)
The bottom line
#Workers summarily dismissed for joining an unprotected strike in Kenya lose any right to notice pay, and courts won't second-guess an employer's chosen punishment.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to notice pay upon summary dismissal for participation in an unprotected strike
Section 44(1) of the Employment Act and clause 4 of the appointment letter disentitled the respondent to notice or pay in lieu; the trial Court erred in awarding one month's notice pay and costs
The respondent admitted participating in the strike, was given a show-cause letter, attended the disciplinary hearing and was summarily dismissed for participating in an unprotected strike. The trial Court correctly found section 44 procedure was followed but wrongly awarded notice pay contrary to section 44(1) and clause 4 of the contract, and unjustifiably awarded costs.
Whether termination was substantively and procedurally unfair (cross-appeal)
Termination was not unfair; the employer followed due process and the punishment chosen was within its prerogative
The respondent knew the allegations, attended the disciplinary hearing, and admitted participation in the strike. Reliance on Carzan Flowers did not assist because no vitiating considerations such as proportionality, uniformity or discrimination were pleaded or established, and there was no basis to substitute the Court's discretion for the employer's.
Whether the judgment could properly apply mutatis mutandis to the other consolidated claimants
The Court declined to fault the trial Court given the missing consolidation order, but the mix-up informed the costs order
Only the respondent testified; the consolidation application and extracted order were not on the record of appeal, so the full extent of consolidation was unknown. The cross-appeal therefore failed, but each party was ordered to bear its own costs in light of the mix-up.
Legal principles established
#- An employer enjoys the prerogative to choose the punishment for participation in an unprotected strike, and the Court will not interfere absent pleaded and established vitiating considerations such as proportionality, uniformity or discrimination
- Summary dismissal under section 44(1) of the Employment Act, 2007 disentitles an employee to notice or pay in lieu of notice
Court orders
#- 1.The trial Court's award of one-month salary in lieu of termination notices and costs of the suit in favour of the respondent and the other claimants is set aside
- 2.Each party to bear own costs of the appeal and proceedings in the trial Court
- On appeal from
- Magistrates' Court (trial Court, employment matter)
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction over the trial Court's judgment (Employment and Labour Relations Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gold Crown Foods (EPZ) Ltd v Esther Wasili Kisau [2022] KEELRC 621 (KLR)", Case Analysis (2022). Not stated in the extract (first appeal from Industrial Cause memorandum of claim dated 28.08.2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/621/eng@2022-02-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.