Bakery Confectionery Food Manufacturing & Allied Workers Union v Wrigley Company (Ea) Limited [2022] KEELRC 896 (KLR)
The bottom line
#A Kenyan court upheld an employer's decision to fire a worker suspected of being drunk, but ruled the dismissal process was unfair and awarded compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent had valid and fair reason to dismiss the grievant on grounds of intoxication at work
Yes. Under sections 43(1) and 45(2) of the Employment Act the employer need only show a genuine belief in the reason for termination, tested on the range of reasonableness. The supervisor's and nurse's observations, the grievant's prior warning, and his refusal of the serum alcohol test at Mater Hospital gave the employer valid and fair grounds for summary dismissal under section 44(4)(b).
Intoxication at work is a ground for summary dismissal under section 44(4)(b) if the employee renders himself unwilling or incapable of performing his work. The court applies a subjective, range-of-reasonableness test to whether the employer genuinely believed the reason existed. As a Technical Operator working on machinery, safety required alertness. The company nurse observed the grievant appeared drunk, and the grievant declined the hospital serum alcohol test that would have resolved the doubt. His non-cooperation reinforced the employer's genuine belief.
Whether the grievant was accorded a fair hearing under section 41 of the Employment Act
No. Although the grievant received a notice to show cause and responded in writing, he was not granted an oral disciplinary hearing despite the show cause letter indicating one would be held on 29 November 2013; no minutes of any hearing or findings of the investigation were produced, and the findings were never shared with him.
Section 41(1) sets the minimum standards of fair procedure: notification of allegations, an opportunity to make representations, and a hearing in the presence of a fellow employee or shop floor union representative. Given that intoxication is a grave offence amounting to gross misconduct and the grievant's livelihood was at stake, an oral hearing was necessary. Further, the grievant was given an unreasonably short timeline (5:00 pm to 7:30 am the next morning) to respond to the show cause letter, and investigation findings were never communicated to him.
What reliefs the grievant is entitled to
The grievant was awarded compensatory damages equivalent to three months' gross salary (Kshs 172,024.08) and a Certificate of Service. One month's salary in lieu of notice and other terminal dues claims failed because they had already been paid.
Although the dismissal was procedurally unfair, the court tempered compensation under section 49 by considering the grievant's short length of service and his own contribution to the termination by refusing to cooperate with the medical examination. Salary in lieu of notice under section 35(1)(c) and the CBA was found to have been paid as part of terminal dues, and no evidence refuted payment of the remaining claims.
Legal principles established
#- An employer need only prove that it genuinely believed the reasons for termination existed at the time of termination; the court does not re-hear the merits of the allegation
- An employer cannot force an employee to take a blood test to establish intoxication; an employee's refusal to cooperate may validate the employer's genuine belief of intoxication
- The reasonableness of an employer's disciplinary decision is assessed on the range (band) of reasonableness test
- Where a grave offence carrying the risk of loss of livelihood is alleged, section 41 of the Employment Act requires an oral hearing; an exchange of letters alone does not satisfy the minimum standards of fair procedure
Court orders
#- 1.Judgment entered in favour of the claimant against the respondent, awarding the grievant Kshs 172,024.08 being compensation equivalent to 3 months gross salary
- 2.The award to attract interest at court rates from the date of judgment until payment in full
- 3.Costs to be borne by the respondent
- 4.The grievant entitled to a Certificate of Service pursuant to section 51(1) of the Employment Act
- Jurisdiction invoked
- Article 162(2) of the Constitution (establishment of the Employment and Labour Relations Court); claims brought under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Abel v Teachers Service Commission (Cause E003 of 2023) [2024] KEELRC 1765 (KLR)[2024] KEELRC 1765 (KLR)4 Jul 2024
- Simiyu v Teachers Service Commission (Petition 2 of 2023) [2024] KEELRC 53 (KLR)[2024] KEELRC 53 (KLR)25 Jan 2024
- Walemba v Teachers Service Commission (Cause 8 of 2023) [2023] KEELRC 2533 (KLR)[2023] KEELRC 2533 (KLR)18 Oct 2023
Cite this brief
#Cite this brief
Caselaw, "Bakery Confectionery Food Manufacturing & Allied Workers Union v Wrigley Company (Ea) Limited [2022] KEELRC 896 (KLR)", Case Analysis (2022). Cause No 1519 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/896/eng@2022-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.