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ELRCPartially AllowedCause No 1519 of 2015· [2022] KEELRC 896 (KLR)

Bakery Confectionery Food Manufacturing & Allied Workers Union v Wrigley Company (Ea) Limited [2022] KEELRC 896 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
28 January 2022
5,224 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant union sued on behalf of its member, Alfred Keter, a Technical Operator dismissed by the respondent on 10 December 2013 on allegations of intoxication at work, seeking a declaration that the termination was wrongful and illegal, termination benefits of Kshs 2,284,043.08 and a Certificate of Service. The respondent maintained that the grievant's supervisor reported him smelling of alcohol and uncoordinated on 28 November 2013; the company nurse observed he appeared drunk but could not ascertain the level of intoxication, and the grievant declined a serum alcohol test at Mater Hospital. The court framed three issues: whether there was justifiable cause for dismissal, whether a fair hearing was accorded, and entitlement to reliefs. On substance, applying sections 43 and 45 of the Employment Act and the range of reasonableness test, the court held the employer genuinely believed the grievant was intoxicated; given the machine-operating role, the refusal of the medical test and prior warning availed the employer valid and fair grounds for termination, and an employer cannot force a blood test. On procedure, however, the court found the dismissal procedurally unfair: no oral disciplinary hearing was held despite the show cause letter indicating one, investigation findings were never shared with the grievant, and he was given an unreasonably short time to respond to the show cause letter. Compensatory damages equivalent to three months' gross salary (Kshs 172,024.08) were awarded, reduced for the grievant's short service and contribution to the termination. Claims for notice pay and other terminal dues were dismissed as already paid, and a Certificate of Service was granted. Judgment was entered for the claimant with interest and costs against the respondent.

Key legal issues

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01

Whether the respondent had valid and fair reason to dismiss the grievant on grounds of intoxication at work

Holding

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).

Reasoning

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.

p. 5
02

Whether the grievant was accorded a fair hearing under section 41 of the Employment Act

Holding

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.

Reasoning

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.

p. 6
03

What reliefs the grievant is entitled to

Holding

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.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 2.The award to attract interest at court rates from the date of judgment until payment in full
  3. 3.Costs to be borne by the respondent
  4. 4.The grievant entitled to a Certificate of Service pursuant to section 51(1) of the Employment Act

Authorities

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Legislation

  • Employment ActSection 41 (and 41(1))
  • Employment ActSection 43(1) and 43(2)
  • Employment ActSection 44(4)(b) and section 44(4)
  • Employment ActSection 45(2)(a),(b),(c) and section 45(4)(b)
  • Employment ActSection 35(1)(c)
  • Employment ActSection 51(1)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (11)

  • John Rioba Maungo vs Falcon Security Services Limited
    (2016) eKLR
  • Peter Wangai vs Egerton University
    (2019) eKLR
  • Eliud Wachira vs General Motors (EA) Limited
    (2019)
  • Bamburi Cement Ltd. vs Farid Aboud Mohammed
    (2016) eKLR
  • Joseph Onyango Asare vs Brookside Dairy Limited
    (2016) eKLR
  • Kenya Revenue Authority vs Menginya Salim Murgani
    (2010) eKLR
  • Kenya Revenue Authority vs Reuwel Waithaka Gitahi & 2 Others
    [2019] eKLR
  • British Leyland UK Limited vs Swift
    [1981] IRLR 91
  • Kenya Ports Authority vs Fadhil Juma Kisuwa
    [2017] eKLR
  • Postal Corporation of Kenya vs Andrew K. Tanui
    [2019] eKLR
  • Patrick Abuya vs Institute of Certified Public Accountants of Kenya (ICPAK) & another
    [2015] eKLR
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.