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ELRCPartially AllowedNot stated in judgment· [2022] KEELRC 1321 (KLR)

Kenya Plantation and Agricultural Workers Union v Uniliver Tea Kenya Limited (Cause E009 of 2021) [2022] KEELRC 1321 (KLR)

Employment and Labour Relations Court
27 July 2022
3,747 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled Unilever unfairly dismissed an employee because it failed to prove the misconduct, but refused reinstatement and denied the union costs for sloppy pleadings.

What this practically means

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Executive summary

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The claimant trade union sued on behalf of its member, Peres Moraa, a Unilever employee dismissed on 1 April 2020 for gross misconduct, alleging she hosted her son Kevin Moturi - declared persona non grata - in her staff house on 24 March 2020 in defiance of a lawful command and Covid-19 visitor directives. The grievant denied that Kevin Moturi was her son, maintaining her son was Kevin Gesore Omanga, resident in Nyamira since 2019, and that it was her nephew and his friend who were found in her house. The court framed three issues: validity of the reason for dismissal, procedural fairness, and reliefs. On substance, the court held the respondent failed to discharge its burden under sections 43 and 45 of the Employment Act: the persons who allegedly found Kevin Moturi in the house did not testify, the respondent's manager admitted under cross-examination that employment records showed the son as Kevin Gisore Omanga and that no company rule warranted dismissal for hosting a PNG, and the grievant's denial was unrebutted. The dismissal was therefore substantively unfair. On procedure, however, the court found section 41 satisfied - the grievant received a show cause letter, replied in writing, and was heard before a disciplinary committee. Reinstatement was refused for want of exceptional circumstances. The court awarded salary in lieu of notice (two months under CBA clause 23(c)), eight months' salary as compensation under section 49(1), and service gratuity at 22 days' pay per year for over ten years of service under CBA clause 30. Reliefs relating to the post-termination period were refused. Judgment was entered for the claimant, with the respondent directed to compute the amounts from the grievant's last salary and pay within 30 days; costs were denied to the claimant due to poorly drafted pleadings.

Key legal issues

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01

Whether the reason for the dismissal was valid and fair

Holding

The reason was not valid; the respondent failed to prove the grievant hosted Kevin Moturi, who was not shown to be her son

Reasoning

The burden lay on the employer under section 43 of the Employment Act. The persons who allegedly found Kevin Moturi in the grievant's house did not testify, and RW1 admitted the employment records showed the grievant's son as Kevin Gisore Omanga, not Kevin Moturi, and that no company rule mandated dismissal for hosting a PNG. The grievant's denial that Kevin Moturi was her son was never rebutted. The alleged reason therefore failed and the dismissal was substantively unfair under section 45.

p. 6
02

Whether the procedure followed before dismissal was fair

Holding

Procedural fairness was satisfied; the grievant was given a show cause letter, responded in writing, and appeared before a disciplinary committee

Reasoning

Section 41 of the Employment Act requires the employer to explain the reasons and hear the employee's representations before termination. The record showed the grievant received a show cause letter dated 28 March 2020, replied on 29 March 2020, and was heard orally before a committee on 31 March 2020. The court therefore found the respondent discharged its burden on procedure even though the substantive reason failed.

p. 7
03

What remedies flow from the finding of unfair dismissal

Holding

Reinstatement refused; salary in lieu of notice (two months under CBA clause 23(c)), 8 months' salary as compensation under section 49(1), and service gratuity at 22 days' pay per year of service under CBA clause 30 awarded

Reasoning

Reinstatement was withheld because no exceptional circumstances were shown. The CBA entitled an employee of over five years' service to two months' notice, and an employee of over ten years' service to gratuity at 22 days' pay per completed year. Compensation of eight months' salary reflected the grievant's long service, the unproved misconduct, and the manner of eviction from the company house within 24 hours. Reliefs tied to the post-termination period were refused.

p. 7

Legal principles established

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  • The employer bears the burden of proving the reasons for termination; where it fails, the dismissal is unfair under sections 43 and 45 of the Employment Act
  • Reinstatement under section 49 of the Employment Act is granted only in exceptional circumstances
  • An employee is entitled to procedural fairness - notice of charges, opportunity to prepare and be heard, and consideration of representations - before summary dismissal

Court orders

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  1. 1.Judgment entered for the claimant against the respondent in terms of the awards made (salary in lieu of notice, 8 months' salary as compensation for unfair dismissal, and service gratuity at the rate of 22 days' pay for each completed year of service)
  2. 2.The respondent directed to compute the amount payable based on the grievant's last salary and pay the same within 30 days of the judgment
  3. 3.Claimant denied costs of the suit

Authorities

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Legislation

  • Employment ActSection 43
  • Employment ActSection 45 (including 45(2)(c))
  • Employment ActSection 44(4)(e) and 44(3)
  • Employment ActSection 41 (including 41(1) and (2))
  • Employment ActSection 49 (and 49(1))
  • Employment Act, 2007Section 42(1)
  • ELRC Procedure RulesRule 28(3)

Cases cited (5)

  • Kenfreight (EA) Ltd vs Benson K. Nguti
    [2016] eKLR
  • Mary ChemwenoKiptui vs Kenya Pipeline Company Limited
    [2014] eKLR
  • Naima Khamis v Oxford University Press (EA) Limited
    [2017] eKLR
  • Dam v Maison de Luxe Limited, Isaacs, ACJ
    [1924] 35 Comm. LR
  • Anthony MkalaChitavi V Malindi water and Sewerage Co. Limited
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 44(4)(e), 45 and 49) and the applicable CBA; not expressly stated in the judgment

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 and Agricultural Workers Union v Uniliver Tea Kenya Limited (Cause E009 of 2021) [2022] KEELRC 1321 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1321/eng@2022-07-27

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