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ELRCPartially AllowedNot stated in the extract (first appeal from Industrial Cause memorandum of claim dated 28.08.2018)· [2022] KEELRC 621 (KLR)

Gold Crown Foods (EPZ) Ltd v Esther Wasili Kisau [2022] KEELRC 621 (KLR)

Employment and Labour Relations Court
25 February 2022
2,369 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a first appeal and cross-appeal against a trial Magistrate's judgment in a summary dismissal claim arising from an unprotected strike of 28.07.2017. The claimant, employed from 2010 and on a fixed-term contract from January to December 2017 earning Kshs. 20,625.00 monthly, was summarily dismissed by letter dated 29.08.2017 for participating in the strike. She claimed notice pay, salary for the remainder of the contract, 12 months' compensation and general damages. The trial Court found the section 44 procedure was followed and the termination was not unfair, but awarded one month's pay in lieu of notice and costs, holding the claimant was entitled to be notified of the termination decision. The employer appealed, contending section 44(1) disentitled the claimant to notice pay; the claimant cross-appealed on unfairness, the fixed-term contract, and the mutatis mutandis application of the judgment to other consolidated claimants. The ELRC held that both section 44(1) of the Employment Act, 2007 and clause 4 of the appointment letter disentitled the claimant to notice or pay in lieu, rendering the notice-pay award and costs unjustified. On the cross-appeal, the Court found the termination not unfair, holding the employer's prerogative in choosing punishment could not be disturbed absent pleaded and established vitiating considerations such as proportionality, uniformity or discrimination. The cross-appeal failed; the consolidation order not being on record, the Court declined to fault the trial Court's mutatis mutandis approach. The appeal succeeded in part: the notice-pay award and costs were set aside, and each party was ordered to bear its own costs of the appeal and the trial proceedings.

Key legal issues

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01

Entitlement to notice pay upon summary dismissal for participation in an unprotected strike

Holding

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

Reasoning

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.

p. 3
02

Whether termination was substantively and procedurally unfair (cross-appeal)

Holding

Termination was not unfair; the employer followed due process and the punishment chosen was within its prerogative

Reasoning

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.

p. 3
03

Whether the judgment could properly apply mutatis mutandis to the other consolidated claimants

Holding

The Court declined to fault the trial Court given the missing consolidation order, but the mix-up informed the costs order

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.Each party to bear own costs of the appeal and proceedings in the trial Court

Authorities

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Legislation

  • Employment Act, 2007section 44(1)
  • Employment Act, 2007sections 41 and 44 (cited in cross-appeal grounds)
  • Labour Relations Act, 2007section 80 (as quoted in Carzan Flowers)
  • Constitution of KenyaArticles 47 and 50(1) (as quoted in Carzan Flowers)

Cases cited (2)

  • Kenya Plantation and Agricultural Workers’ Union –Versus- Carzan Flowers
    [2013] eKLR
  • Kenya Plantation & Agricultural Workers’ Union –Versus- Roseto Flowers
    Industrial Cause No. 44 of 2013
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

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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, "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.