Alex v Unilever Tea Kenya Limited (Cause 105 of 2019) [2022] KEELRC 1620 (KLR)
The bottom line
#A Kenyan court ruled Unilever's dismissal of an employee was procedurally unfair despite valid reasons, awarding six months' salary plus costs.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the disciplinary process
The rushed process, with only two days to respond to the show cause letter and two days to study the investigation report before the hearing, denied the claimant a fair hearing.
Section 41 of the Employment Act requires the employer to explain charges, hear and consider representations, and inform the employee of the right to representation. Given the many charges involving several employees, the short notice and the limited adjournment did not afford the claimant sufficient opportunity to prepare. The court adopted the Chitavi and Kyengo formulations of procedural fairness and found the process unfair even though the claimant did not object to the timeline.
Substantive justification for the dismissal
The reasons for dismissal — mistreatment, bullying, harassment and related misconduct — were valid and justified under the reasonable employer test.
Applying the 'range of reasonable responses' test from Reuben Ikatwa and Lord Denning's test in British Leyland v Swift, the court held that any reasonable employer faced with the conduct displayed by the claimant, as attested by several employees, would justifiably terminate the employment. The allegations of mistreatment and harassment of co-employees constituted gross misconduct warranting dismissal.
Entitlement to reliefs
The claimant was awarded six months' salary for procedural unfairness and a certificate of service, but the claim for terminal dues failed for want of proof.
A finding of unfair termination entitles the claimant to compensation under sections 49 and 50 of the Employment Act, with the measure guided by statutory capping and the claimant's contribution to his dismissal. On terminal dues, the respondent asserted payment while the claimant denied it; neither party produced documents, and the evidentiary burden lay on the claimant, who did not discharge it.
Legal principles established
#- Termination is fair only where the employer establishes both a valid and justified reason (substantive fairness) and a fair procedure, including sufficient opportunity to prepare for a disciplinary hearing.
- Where an employee largely contributes to his termination and the unfairness is procedural only, compensation under section 49 may be moderated to six months' salary.
- An employee is entitled to a certificate of service irrespective of the reasons for dismissal.
Court orders
#- 1.6 months' salary in compensation for unfair termination at Kshs. 1,079,874.86/-
- 2.A certificate of service (the respondent to re-issue the certificate irrespective of whether the same had earlier been issued)
- 3.Costs of the suit and interest until payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 44(4), 45, 47(5), 49 and 50)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alex v Unilever Tea Kenya Limited (Cause 105 of 2019) [2022] KEELRC 1620 (KLR)", Case Analysis (2022). ELRC Cause (Nairobi) — Memorandum of Claim dated 25th October, 2019, filed 6th November, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1620/eng@2022-07-28
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