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ELRCDismissedCause No. 23 of 2019· [2022] KEELRC 822 (KLR)

Kenya Plantation & Agriculatural Wokders union (KPAWU) v Eastern Produce (K) Limited [2022] KEELRC 822 (KLR)

Employment and Labour Relations Court
10 February 2022
OMONESMUS N. MAKAU
3,042 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court upheld a tea picker's summary dismissal for gross misconduct, confirming employers win when reasons are valid and procedure is fair.

What this practically means

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Executive summary

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The claimant union, acting for its member Wibrod Omollo (the grievant), a tea picker employed by Eastern Produce (K) Limited since 2001 and a shop steward, challenged his summary dismissal on 3 November 2017. The dismissal followed a strike on 23 October 2017 during which the grievant was said to have threatened fellow employees with rumours of armed youth, to have intimidated the Divisional Manager, and later to have absented himself from his company residence without permission during suspension. The union sought a declaration of unfair dismissal, maximum compensation, special damages of Kshs 711,250.40, costs and interest. The respondent maintained valid reasons and a fair procedure under sections 44(4) and 41 of the Employment Act and the CBA. The court framed three issues: validity of the reason, fairness of procedure, and entitlement to reliefs. It found the violence charge unproven, as the grievant had merely alerted management to rumours of armed youth. However, it found the intimidation of the Divisional Manager in the presence of security officers and the grievant's admitted unauthorised absence to a market 10 kilometres away established gross misconduct under section 44(4). Procedure was fair: suspension with reasons, a disciplinary hearing attended with a union representative, and a heard appeal. All reliefs were refused - compensation under section 49, pro-rata leave and bus fare for lack of particulars and proof, and gratuity excluded by clause 36 of the CBA. The suit was dismissed with no costs on 10 February 2022, delivered online under Covid-19 directions with the parties' consent.

Key legal issues

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01

Validity and fairness of the reason for summary dismissal

Holding

The respondent proved valid and fair reasons - intimidation of the Divisional Manager and unauthorised absence from the company residence

Reasoning

The court found the charge of threatening violence unproven since the grievant merely alerted management to rumours of armed youth. However, evidence from RW1 corroborated by security officers' statements established a confrontation and refusal to resume work for three hours, and the grievant admitted leaving his company residence to a market 10km away without permission, constituting gross misconduct under section 44(4).

p. 4
02

Fairness of procedure under section 41 of the Employment Act

Holding

A fair procedure was followed - suspension letter stating reasons, disciplinary hearing attended with a union official, and an appeal heard and determined

Reasoning

The grievant was suspended by letter stating the reason, invited by letter dated 1/11/2017 to a hearing on 3/11/2017 with three charges, attended with a union representative and made representations. He appealed and was invited to the appeal hearing on 11/11/2017, which upheld the dismissal. The court was satisfied section 41 was complied with notwithstanding absence of a show cause letter.

p. 4
03

Whether reliefs were merited

Holding

All reliefs declined; the suit was dismissed with no costs

Reasoning

Because the dismissal was for valid reasons and followed fair procedure, the declarations and compensation under section 49 failed. The special damages claims failed for lack of particulars and proof, and gratuity was barred by clause 36 of the CBA excluding gratuity for employees dismissed for gross misconduct.

p. 4

Legal principles established

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  • An employer may terminate employment only for valid and fair reasons (section 45(2) Employment Act)
  • Compliance with section 41 is demonstrated by explanation of reasons, presence of a representative, and an appeal opportunity
  • Disobeying lawful instructions and absenting oneself without permission amounts to gross misconduct under section 44(4)
  • Special damages must be particularly pleaded and proved

Court orders

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  1. 1.Declined to declare the grievant's dismissal unfair and unlawful
  2. 2.Declined to award salary in lieu of notice and compensation for unfair dismissal under section 49 of the Employment Act
  3. 3.Declined the claim for pro-rata leave of Kshs 274,272 for lack of particulars and evidence
  4. 4.Declined the claim of Kshs 5,000 bus fare for lack of particulars and evidence
  5. 5.Declined the claim for gratuity by virtue of clause 36 of the CBA
  6. 6.Dismissed the claimant's suit with no costs

Authorities

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Legislation

  • Employment Actsection 45(2)
  • Employment Actsection 41
  • Employment Actsection 42(1)
  • Employment Actsection 44(4)
  • Employment Actsection 44(4)(a)(c)(d) and (e)
  • Employment Actsection 47(5)
  • Employment Actsection 49
  • ELRC (Procedure) RulesRule 28(3)
  • Collective Bargaining Agreementclause 30(a)(c)(d) and (e)
  • Collective Bargaining Agreementclause 36

Cases cited (3)

  • Water Ogal Auro v Teachers Service Commission
    [2013] eKLR
  • Mary Cheveweno Kiptui v Kenya Pipeline Co Ltd
    [2014] eKLR
  • Antony kala Chitavi vs Malindi Water and Sewerage Co. Ltd
    [203] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over trade disputes (Employment Act; ELRC Procedure Rules)

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 Wokders union (KPAWU) v Eastern Produce (K) Limited [2022] KEELRC 822 (KLR)", Case Analysis (2022). Cause No. 23 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/822/eng@2022-02-10

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