Kenya Union of Sugar Plantation and Allied Workers v Muhoroni Sugar Co Limited (In Receivership) (Cause E065 of 2021) [2023] KEELRC 332 (KLR)
The bottom line
#A Kenyan court ruled that even a fair dismissal cannot strip an employee of benefits already earned, and punishing similar misconduct unevenly is unconstitutional discrimination.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the summary dismissal
The dismissal was procedurally fair
The grievant was issued with a show cause letter which she answered, was suspended pending investigation, invited to a disciplinary hearing, informed of her right to be accompanied by a representative of her choice (which she declined to exercise), and her representations were considered. This satisfies the requirements of Section 41 of the Employment Act and the procedural fairness test.
Substantive justification for the dismissal
The dismissal was substantively fair
The charge was verbal abuse and insulting conduct towards the Management Accountant during an asset verification exercise. Under Section 44(4)(d) of the Employment Act such conduct amounts to gross misconduct. RW2 confirmed the grievant hurled insults, and not knowing a person cannot justify abusive language. Applying the reasonable employer test, dismissal was justified.
Discrimination
The grievant was discriminated against contrary to Article 27 of the Constitution
The grievant and her supervisor faced similar charges but received different penalties: the supervisor was terminated with terminal benefits while the grievant was summarily dismissed and denied benefits. Respondent's witnesses could not explain the differential treatment, showing she was treated differently from someone in similar circumstances.
Entitlement to reliefs
Reinstatement and compensation for unfair dismissal refused; two months' pay in lieu of notice and gratuity awarded
Reinstatement and compensation for unfair dismissal collapse because the dismissal was fair. The contract provided a two-month notice period; the dismissal letter provided no notice or pay in lieu, so two months' salary in lieu is awarded. Under Clause 32 of the CBA, unionisable employees are entitled to gratuity at 25 days per completed year of service.
Legal principles established
#- A summary dismissal cannot disentitle an employee to accrued terminal benefits; denying them is unconstitutional
- Employees facing similar charges for the same conduct must be treated alike; differential penalties without explanation amount to discrimination contrary to Article 27
Court orders
#- 1.Two months' salary in lieu of notice at Kshs. 65,296/-
- 2.Payment of gratuity
- 3.Payment of any other terminal dues accrued at dismissal
- 4.Costs of the suit and interest until payment in full
- 5.Grievant's summary dismissal converted to a termination and she be paid all terminal benefits accrued to her as at the time of her dismissal
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction to hear and determine constitutional issues as and when they arise from employment and labour relations
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Sugar Plantation and Allied Workers v Muhoroni Sugar Co Limited (In Receivership) (Cause E065 of 2021) [2023] KEELRC 332 (KLR)", Case Analysis (2023). ELRC Cause (Kisumu), Memorandum of Claim dated 20th September 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/332/eng@2023-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.