Kenya Union of Commercial, Food and Allied Workers v Endarasha Dairy Farmers Co-operative Society Limited (Cause E018 of 2020) [2022] KEELRC 4137 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the termination of the grievant was wrongful, unfair and unlawful
Yes - the termination was unfair and unlawful for failure to comply with sections 41, 43 and 45 of the Employment Act
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.
Whether the respondent is entitled to the counter claim of Kshs 133,656.00
No - the counter claim fails
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.
Whether the claimant is entitled to the relief sought
Partially - having succeeded on unfair termination, the grievant was awarded notice pay and 12 months' salary as compensation
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.
Legal principles established
#- 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
#- 1.One (1) month salary in lieu of notice of Kshs 21,418.00
- 2.Twelve (12) months salary as compensation for unlawful termination of employment, Kshs 21,418.00 x 12 = Kshs 257,016.00
- 3.Total award of Kshs 278,434.00
- 4.Costs of the claim and counter claim to be borne by the respondent
- 5.Counter claim disallowed/dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.