Kenya Union of Hair and Beauty Workers v Trenz Kenya Limited (Cause 2188 of 2016) [2022] KEELRC 1482 (KLR)
The bottom line
#A Kenyan court ruled workers fired without written reasons and a hearing win compensation, even on expiring fixed-term contracts.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was procedurally fair
The dismissal was procedurally unfair; the grievants were neither notified of the grounds nor heard
Section 41 of the Employment Act requires notification of intention and grounds, an opportunity to make representations, and consideration of those representations. The only evidence was a warning from the Human Resource Manager to return to work, which is not the express notification contemplated by section 41. The HR Manager who dealt with the alleged strike did not testify, and the respondent produced no minutes of any disciplinary proceedings.
Whether the summary dismissal was substantively fair
The dismissal was substantively unfair; the respondent failed to prove an unlawful strike or sit-in as a valid and fair reason
Once the grievants laid basis for their claim of unfair termination, the burden shifted to the employer under sections 43(1), 45(2) and 47(5). The respondent's evidence on the alleged sit-in was unsatisfactory: no start or end time, no identification of participants, and the HR Manager best placed to testify was not called. The evidence did not establish a fundamental breach under section 44(3) justifying summary dismissal.
What compensatory relief the grievants were entitled to
Each grievant was awarded three months' gross salary as compensation under section 49(1)(c), computed per the unchallenged schedule of earnings
The court exercised its discretion under section 49(1)(c), weighing the short period remaining on most contracts (17 days), successive renewals over more than six years, the respondent's stated intention to renew, the legitimate expectation of renewal, and the summary dismissal's lack of validity, fairness and justification, being retaliatory and aimed at defeating union membership.
Legal principles established
#- Procedural fairness under section 41 of the Employment Act requires express notification of the grounds and an opportunity to be heard; a warning to cease a strike is not equivalent to such notification
- An employer bears the burden of proving valid and fair reasons for termination under sections 43(1), 45(2) and 47(5) of the Employment Act
- Employees on fixed term contracts are entitled to fair dealing up to the very end of the contract; summary dismissal before expiry requires justification
- Multiple successive renewals of fixed term contracts plus an employer's stated intention to renew may found a legitimate expectation of renewal relevant to compensation
Court orders
#- 1.A declaration that the summary dismissal of the grievants was unfair
- 2.Compensation pursuant to section 49(1)(c) of the Employment Act of three (3) months gross salary for each grievant, computed in accordance with the schedule of earnings set out in the judgment
- 3.Interest on the compensation from the date of judgment until full payment
- 4.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (sections 41, 43, 44, 45, 47(5), 49(1)(c)); original first-instance claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Hair and Beauty Workers v Trenz Kenya Limited (Cause 2188 of 2016) [2022] KEELRC 1482 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1482/eng@2022-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.