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ELRCPartially AllowedELRC Cause (Kisumu), Memorandum of Claim dated 20th September 2021· [2023] KEELRC 332 (KLR)

Kenya Union of Sugar Plantation and Allied Workers v Muhoroni Sugar Co Limited (In Receivership) (Cause E065 of 2021) [2023] KEELRC 332 (KLR)

Employment and Labour Relations Court
9 February 2023
3,845 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Kenya Union of Sugar Plantation and Allied Workers sued on behalf of a grievant, Judith Adhiambo Onyango, summarily dismissed by the Respondent on 6th August 2020 after an incident of 18th June 2020 in which she allegedly insulted the newly employed Management Accountant, Ms Consolata Muhindi, during an asset verification exercise at the agricultural stores. The Claimant alleged the dismissal was procedurally and substantively unfair, that the grievant was targeted for her past union activism, and that she was discriminated against because her supervisor, who faced similar charges, was merely terminated with benefits. The court framed three issues: wrongful dismissal, discrimination, and entitlement to reliefs. It held the dismissal procedurally fair, as the grievant received a show cause letter, replied, was suspended, and was given a disciplinary hearing with the right to a representative which she declined. It also held the dismissal substantively fair, since abusive and insulting language towards a person placed in authority constitutes gross misconduct under Section 44(4)(d) of the Employment Act, applying the reasonable employer test. On discrimination, however, the court found the grievant was treated differently from her supervisor in similar circumstances without explanation, contrary to Article 27 of the Constitution, and ordered the summary dismissal converted to a termination with payment of accrued terminal benefits. Reinstatement and compensation for unfair dismissal were refused. The grievant was awarded two months' salary in lieu of notice (Kshs. 65,296/-), gratuity under Clause 32 of the CBA at 25 days per completed year, other accrued terminal dues, plus costs and interest until payment in full.

Key legal issues

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01

Procedural fairness of the summary dismissal

Holding

The dismissal was procedurally fair

Reasoning

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.

p. 6
02

Substantive justification for the dismissal

Holding

The dismissal was substantively fair

Reasoning

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.

p. 7
03

Discrimination

Holding

The grievant was discriminated against contrary to Article 27 of the Constitution

Reasoning

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.

p. 7
04

Entitlement to reliefs

Holding

Reinstatement and compensation for unfair dismissal refused; two months' pay in lieu of notice and gratuity awarded

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.Two months' salary in lieu of notice at Kshs. 65,296/-
  2. 2.Payment of gratuity
  3. 3.Payment of any other terminal dues accrued at dismissal
  4. 4.Costs of the suit and interest until payment in full
  5. 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

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 44(4)(d)
  • Employment ActSection 47(5)
  • Labour Relations Act
  • Constitution of KenyaArticle 27
  • Collective Bargaining Agreement (Claimant and Respondent)Clause 9(ii)a; Clause 7; Clause 32

Cases cited (11)

  • Anthony Mkala Chitavi v. Malindi Water & Sewerage Company Ltd
    [2013] eKLR
  • Mary Mutanu Mwendwa v Ayuda
    [2013] eKLR
  • Silvester Malei Kyengo v Kenya Meat Commission
    (2019) eKLR
  • Kenfreight (EA) Ltd v Benson K. Nguti
    [2016] eKLR
  • Reuben Ikatwa & 17 others v Commanding Officer British Army Training Unit Kenya & another
    Nyeri Civil Appeal No.97 of 2016
  • Charles Musungu Odana v Kenya Ports Authority
    [2019] eKLR
  • British Leyland v Swift
    (1981) I.R.L.R 91
  • International Centre for Insect Physiology and Ecology (ICPE) vs Nancy Minally
    [2018] eKLR
  • United States International University (USIU) vs Attorney General
    [2012] eKLR
  • Daniel N. Mugendi vs Kenyatta University & 3 others
  • Kenya National Union of Nurses v Nairobi County Government
    ELRC Cause No. 593 of 2015
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

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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 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.