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ELRCPartially AllowedCause No E018 of 2020· [2022] KEELRC 4137 (KLR)

Kenya Union of Commercial, Food and Allied Workers v Endarasha Dairy Farmers Co-operative Society Limited (Cause E018 of 2020) [2022] KEELRC 4137 (KLR)

Employment and Labour Relations Court
28 September 2022
1,711 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a dairy worker's dismissal unfair because the employer couldn't prove misconduct, awarding him over Kshs 278,000.

What this practically means

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Executive summary

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This was a claim by a union on behalf of a grievant, James Ndungu, employed by a dairy respondent from 2005 in various positions (washing cans, loader, milk truck driver and lastly local sales), who was summarily dismissed in August 2019 following allegations of milk adulteration. The claimant alleged the grievant was condemned unheard and sought reinstatement, re-engagement, notice pay, leave, off days, public holidays, underpayments and 12 months' compensation totalling Kshs 1,266,379.23. The respondent denied the dismissal, alleged abscondment, insubordination and abusive language, and counter-claimed Kshs 133,656.00 as loss from milk adulteration. The court framed four issues: lawfulness of the termination; entitlement to the counter claim; entitlement to relief; and costs. On the evidence, the court held the termination unfair and unlawful under sections 41, 43 and 45 of the Employment Act, 2007: the respondent failed to prove the adulteration, took no action against the alleged criminal act, and did not controvert evidence that milk quality assessment was not the grievant's responsibility. The counter claim failed on a balance of probabilities. Judgment was entered for the grievant for one month's salary in lieu of notice (Kshs 21,418.00) and twelve months' salary as compensation for unlawful termination (Kshs 257,016.00), totalling Kshs 278,434.00. The respondent was ordered to bear the costs of both the claim and the counter claim. Reinstatement, re-engagement and the particularised leave, off-day, public holiday and underpayment heads were not awarded.

Key legal issues

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01

Whether the termination of the grievant was wrongful, unfair and unlawful

Holding

Yes - the termination was unfair and unlawful for failure to comply with sections 41, 43 and 45 of the Employment Act

Reasoning

The respondent failed to establish the alleged misconduct of milk adulteration in evidence, took no discernible action against the alleged criminal act, and did not controvert evidence that the grievant was not responsible for milk quality assessment. The dismissal was for invalid reasons and through an abused process, offending sections 41, 43 and 45 of the Employment Act, 2007.

p. 4
02

Whether the respondent is entitled to the counter claim of Kshs 133,656.00

Holding

No - the counter claim fails

Reasoning

The counter claim, premised on loss from milk adulteration attributable to the grievant, was not proved on a balance of probabilities. The claimant's case of unfair termination was more probable than the respondent's allegations of loss.

p. 4
03

Whether the claimant is entitled to the relief sought

Holding

Partially - having succeeded on unfair termination, the grievant was awarded notice pay and 12 months' salary as compensation

Reasoning

Success on the unfair termination claim entitled the grievant to relief, but the court exercised discretion to award only one month's salary in lieu of notice and twelve months' compensation, rather than the full panoply of reliefs claimed including reinstatement, leave, off days, public holidays and underpayments.

p. 4

Legal principles established

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  • An employee whose termination is not in compliance with sections 41, 43 and 45 of the Employment Act is unfairly and unlawfully terminated where the reasons are invalid and the process is abused.
  • An employer alleging loss from an employee's misconduct must establish it on a balance of probabilities; mere allegations of adulteration unsupported by evidence and unaccompanied by any action against the employee do not sustain a counter claim or lawful dismissal.
  • An employee who refuses to participate in an employer's internal disciplinary process cannot later rely on that refusal to allege lack of a hearing.

Court orders

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  1. 1.One (1) month salary in lieu of notice of Kshs 21,418.00
  2. 2.Twelve (12) months salary as compensation for unlawful termination of employment, Kshs 21,418.00 x 12 = Kshs 257,016.00
  3. 3.Total award of Kshs 278,434.00
  4. 4.Costs of the claim and counter claim to be borne by the respondent
  5. 5.Counter claim disallowed/dismissed

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45

Cases cited (3)

  • Mathew Lucy Cherusa v Poverelle Sisters of Belgamo T/a Blessed Louis Palazzalo Health Centre
    [2013] eKLR
  • Jackson Butiya v Eastern Produce Kenya Limited
    Industrial Court Cause No 335 of 2011
  • Fridah Nyabonyi Abuya v Virtual HR Services Limited
    [2021] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43 and 45) - original jurisdiction, no constitutional/statutory provision expressly cited

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 Union of Commercial, Food and Allied Workers v Endarasha Dairy Farmers Co-operative Society Limited (Cause E018 of 2020) [2022] KEELRC 4137 (KLR)", Case Analysis (2022). Cause No E018 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4137/eng@2022-09-28

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