Amalgamated Union of Kenya Metal Workers v Power Protection Limited [2022] KEELRC 803 (KLR)
The bottom line
#A Kenyan court ruled that firing an employee for theft without giving them a hearing was unfair, awarding the worker Kshs.177,185 in compensation.
What this practically means
#Executive summary
#Key legal issues
#Existence of an employer-employee relationship in an undefended claim
The employment relationship was proved on a balance of probabilities through the termination letter, correspondence and the conciliator's report
In an undefended claim the claimant must establish all the facts, starting with the employment relationship as a preliminary issue. The Claimant produced the grievant's termination letter dated 17th May 2019, letters dated 23rd May, 3rd September and 12th September 2019, and the conciliator's report dated 3rd October 2019 as proof. These documents established engagement between June 2017 and 17th May 2019.
Procedural and substantive validity of the termination
The summary dismissal for alleged theft was procedurally and substantively unfair under Sections 41, 43 and 45(2) of the Employment Act
The termination letter dismissed the grievant for persistent stealing without giving him an opportunity to defend himself. Section 41 of the Employment Act mandates notification and hearing before termination on grounds of misconduct. Without a hearing there was also no proof of the grounds for termination, so the dismissal failed both the procedural and substantive fairness tests under Sections 41, 43 and 45(2).
Reinstatement as a remedy
Reinstatement was declined because no exceptional circumstances were proved
Section 49(4) of the Employment Act requires the court to consider the practicability of reinstatement and the common law principle against specific performance of contracts of employment except in exceptional circumstances. Following the Court of Appeal decision in Kenya Airways Limited v Aviation Allied Workers Union Kenya & 3 Others, the court found no exceptional circumstances and noted the theft allegations were inconsistent with reinstatement.
Compensation for unfair termination
Four months' salary (Kshs.88,000) awarded as compensation under Section 49(4), taking into account the manner of termination, length of service and the Respondent's failure to defend
Having found the termination unfair, the court exercised its discretion under Section 49(4) of the Employment Act. It considered the manner in which the grievant was terminated, his roughly two years of service, and the fact that the Respondent, though properly served, failed to enter appearance or file a defence. Four months' salary was considered appropriate rather than the twelve months sought.
Legal principles established
#- In an undefended claim the claimant must first establish the existence of an employment relationship before other prayers can be considered
- The burden of proving unfair termination rests on the employee while the employer bears the burden of justifying the grounds for termination
- Termination without affording the employee an opportunity to be heard contravenes Section 41 of the Employment Act and is unfair under Section 45(2)
Court orders
#- 1.Declaration that the grievant's termination was unfair, unlawful and in violation of Articles 28, 41(1) and 47 of the Constitution
- 2.One month's pay in lieu of notice of Kshs.22,000
- 3.Salary for 17 days worked in May 2019 of Kshs.14,385
- 4.Annual leave pay of Kshs.30,800
- 5.Service pay of Kshs.22,000
- 6.Four months' salary as compensation for unfair termination of Kshs.88,000
- 7.Total judgment sum of Kshs.177,185 in favour of the Claimant
- 8.Certificate of service to be issued to the grievant pursuant to Section 51 of the Employment Act, 2007
- 9.Respondent to pay the Claimant's costs of the suit and interest at Court rates from the date of judgment until settlement in full
- Jurisdiction invoked
- First-instance jurisdiction over the trade dispute reported to the Ministry of Labour under Section 62 of the Labour Relations Act, 2007, following a failed conciliation (Section 16(a) of the Labour Relations Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amalgamated Union of Kenya Metal Workers v Power Protection Limited [2022] KEELRC 803 (KLR)", Case Analysis (2022). Cause No E591 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/803/eng@2022-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.