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ELRCPartially AllowedELRC Cause at Kisumu (Memorandum of Claim dated 29th October 2021, filed 1st December 2021)· [2023] KEELRC 299 (KLR)

Kenya Union of Sugarcane Plantation & Allied Workers Union v Chemelil Sugar Co. Ltd (Cause E081 of 2021) [2023] KEELRC 299 (KLR)

Employment and Labour Relations Court
9 February 2023
CBChristine N. Baari
3,909 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Chemelil Sugar's workers were unfairly terminated because the Managing Director ignored his own disciplinary committee's reinstatement recommendation without explaining why.

What this practically means

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Executive summary

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The Kenya Union of Sugar Plantation Workers sued Chemelil Sugar Company Limited on behalf of seven grievants, all elected union officials, who were suspended indefinitely on 9th April 2020 after allegedly forcefully removing rejected supplies from the company's stores, and whose services were terminated on 6th July 2020. The union sought reinstatement with full benefits, or alternatively a declaration of unlawful termination, compensation and exemplary damages. The court framed two issues: whether the termination was unfair, and whether the reliefs were deserved. On procedure, the court found the Respondent complied with Section 41 of the Employment Act - show cause letters were issued, the grievants responded, and the union represented them at the disciplinary hearing. On substance, however, the disciplinary committee had recommended reinstatement with a final warning, finding the reasons insufficient for termination, yet the Managing Director terminated the grievants without assigning any reasons for departing from that recommendation, contrary to Clause 6.2.6 of the Human Resource Policy Manual. The court held that unjustified deviation from a disciplinary committee's recommendation renders a termination substantively unfair. On remedies, the court found reinstatement practicable and the most efficacious remedy: the claim fell within the three-year statutory window, the grievants had a clean service record, and the terminations were connected to their union positions. The court ordered reinstatement without loss of benefits, held that salaries for the period 6th July 2020 to 9th February 2023 are not payable as no service was rendered, awarded salary arrears for the suspension period, and dismissed the alternative reliefs. Each party was ordered to bear its own costs in the interest of better labour relations.

Key legal issues

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01

Procedural fairness of the termination

Holding

The Respondent adhered to the requirements of Section 41 of the Employment Act; the termination was procedurally fair.

Reasoning

The grievants were issued show cause letters which doubled as suspension notices, responded to them, and appeared before a disciplinary committee with their union in attendance and duly representing them. Citing Postal Corporation of Kenya v Andrew K. Tanui and Hosea Akunga Ombwori v Bidco Oil Refineries, the court found the four elements of fair procedure - explanation of grounds, reasons, accompaniment of choice, and hearing of representations - were met.

p. 6
02

Substantive justification of the termination

Holding

The termination failed the substantive justification test because the Managing Director deviated from the disciplinary committee's recommendation of reinstatement with a final warning without assigning reasons, contrary to Clause 6.2.6 of the Human Resource Manual.

Reasoning

The disciplinary committee found the reasons insufficient to warrant termination and recommended reinstatement with a final warning. The Managing Director terminated the grievants without giving reasons for departing from that recommendation. The court held that deviation without reason reduces the disciplinary process to box-ticking and renders the termination unfair under Section 43.

p. 7
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Reinstatement as remedy

Holding

Reinstatement was granted as the most efficacious remedy, being within the three-year statutory window and justified by the grievants' clean record, the committee's own reinstatement recommendation, and the union-official context of the terminations.

Reasoning

The termination occurred on 6th July 2020, within three years, satisfying Section 12(3)(vii) of the ELRC Act. Applying Kenya Airways v Aviation & Allied Workers Union on special circumstances and the New Zealand practicability test, the court balanced the parties' interests: clean record of service, the committee's recommendation, and the union-official status of the grievants made reinstatement practicable and efficacious.

p. 8

Legal principles established

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  • An employer who deviates from the recommendations of its own disciplinary committee without giving reasons renders the termination unfair despite having conducted a procedurally fair hearing
  • Fair termination requires both procedural fairness under Section 41 and substantive justification under Sections 43 and 45 of the Employment Act

Court orders

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  1. 1.The grievants be reinstated to their previous positions in the service of the Respondent without loss of benefits
  2. 2.Salaries for the period 6th July, 2020 to 9th February, 2023 are not payable as no service was rendered
  3. 3.The grievants shall be entitled to the salary arrears owed for the period they were on suspension
  4. 4.The alternative reliefs (declaration of unlawful termination, compensation, exemplary damages) are dismissed
  5. 5.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Employment Act, 2007Sections 41, 43, 45, 47(5), 49(3)(a)
  • Employment and Labour Relations Court ActSection 12(3)(vii)
  • Constitution of Kenya, 2010Article 37
  • Collective Bargaining Agreement (between the parties)
  • Respondent's Human Resource Policy Manual (Rules of Conduct and Discipline)Chapter Six; Clause 6.2.6

Cases cited (7)

  • Postal Corporation of Kenya v Andrew K. Tanui
    [2019] eKLR
  • Hosea Akunga Ombwori v Bidco Oil Refineries Limited
    (2017) eKLR
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Kenya Power and Lighting Company Limited vs. Agrey Lukorito Wasike
    Nyeri Civil Appeal No. 79 of 2016
  • Kenya Airways Limited vs Aviation & Allied Workers Union Kenya & 3 Others
    [2014] eKLR
  • New Zealand Educational Institute v. Board of Trustees Auckland Normal Intermediate School
  • Parliamentary Service Commission v Christine Mwambua
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, Section 12 (original jurisdiction over employment and labour relations disputes)

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 Sugarcane Plantation & Allied Workers Union v Chemelil Sugar Co. Ltd (Cause E081 of 2021) [2023] KEELRC 299 (KLR)", Case Analysis (2023). ELRC Cause at Kisumu (Memorandum of Claim dated 29th October 2021, filed 1st December 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/299/eng@2023-02-09

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