Kenya Plantation and Agricultural Workers Union v Eastern Produce (K) Limited (Employment and Labour Relations Cause 22 of 2019) [2022] KEELRC 1302 (KLR)
The bottom line
#A Kenyan court awarded a tea estate worker 12 months' salary because his employer fired him after a flawed hearing and failed to prove the misconduct allegations.
What this practically means
#Executive summary
#Key legal issues
#Whether a notice to show cause is a mandatory prerequisite to lawful termination
It is not mandatory unless required by the contract, CBA or HR policy; a suspension letter enumerating the offences and read at the hearing sufficed for notification.
The court read section 41(1) of the Employment Act as requiring only that the employer explain the reasons for termination in a language the employee understands, in the presence of a fellow employee or union representative of his choice, and that the employer hear and consider representations under section 41(2). Since no evidence showed a show-cause notice was contractually mandatory, its absence was not fatal; the grievant had been notified of six offences via the suspension letter and at the hearing.
Whether the disciplinary process accorded the grievant procedural fairness under section 41
It did not: although the grievant attended with a representative, four witnesses testified and no questions were put to them by him, and he was only asked to mitigate after being found guilty.
Relying on section 41 of the Employment Act and authorities including Chitavi and Makori, the court held that the employer must explain the reasons, hear and consider the employee's representations, and allow the employee to cross-examine witnesses and present his defence. The minutes showed the witnesses testified without cross-examination and the grievant was merely asked to mitigate; mere invitation to a hearing is not proof of procedural fairness, so the dismissal breached section 45(2)(c).
Whether the reasons for the dismissal were valid and fair under sections 43 and 45
The reasons (vandalism of machines, swapping of parts, failure to perform duty and to obey instructions) were not proved on a balance of probability.
The respondent's Divisional Manager's evidence that the grievant vandalised machines was hearsay, based on persons who never testified, and was an unfounded opinion contradicted by the sister-estate artisan's finding of faulty parts which were bought and fitted. The claim of unique know-how failed because Hillary Too, another artisan, took over from the grievant. The failure-to-instruct charge failed because the grievant's evidence that requested spare parts were not supplied was unrebutted.
Entitlement to reliefs
Two months' notice pay under clause 29(d) of the CBA, maximum 12 months' compensation under section 49, and gratuity at 21 days per year under clause 30 were awarded; leave, October salary and bus fare claims were declined for want of particulars and proof of payment.
Having found the termination substantively and procedurally unfair, the court awarded notice pay reflecting the grievant's long service, and the maximum 12 months' compensation considering 19 years of service, absence of proved misconduct and dismissal without a hearing. Gratuity was payable under CBA clause 30 at 21 days per year for service exceeding 10 years. The remaining claims failed for lack of particulars and because payslips evidenced payment.
Legal principles established
#- A notice to show cause is not mandatory before termination unless the contract, collective agreement or HR policy requires it; what matters is that the employee is informed of the reasons and given an opportunity to defend himself.
- Mere attendance at a disciplinary hearing does not satisfy section 41 of the Employment Act; the employee must be allowed to cross-examine the witnesses against him and give his side of the story.
- The employer bears the burden of proving the reasons for dismissal on a balance of probability; hearsay evidence and unfounded opinions do not discharge that burden.
- The reasonableness test for dismissal is whether a reasonable employer would have dismissed the employee in the circumstances.
Court orders
#- 1.Judgment entered for the claimant against the respondent for payment of two months' salary in lieu of notice of Kshs. 31,235.86
- 2.Payment of 12 months' salary as compensation for the unfair termination of Kshs. 187,415.16
- 3.Payment of gratuity for 20 years worked at the rate of 21 days per year, computed as 21/26 x 15,617.93 x 20 = Kshs. 252,289.64
- 4.Costs of the suit awarded to the claimant
- 5.Interest at court rate from the date of the judgment
- 6.Declaration that the grievant's termination was unfair and unlawful
- Jurisdiction invoked
- Article 162(2) of the Constitution read with the Employment and Labour Relations Court Act (court seized of an employment dispute under the Employment Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Plantation and Agricultural Workers Union v Eastern Produce (K) Limited (Employment and Labour Relations Cause 22 of 2019) [2022] KEELRC 1302 (KLR)", Case Analysis (2022). Memorandum of Claim dated 18th February, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1302/eng@2022-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.