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ELRCPartially AllowedELRC Cause (Eldoret), Memorandum of Claim dated April 18, 2018· [2023] KEELRC 343 (KLR)

Bakery Confectionery Food Manufacturing & Allied Workers v Big Bite Bakers & Confectioners Limited (Cause 9 of 2022) [2023] KEELRC 343 (KLR)

Employment and Labour Relations Court
3 February 2023
AJAbuodha Nelson Jorum
2,203 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that even valid dismissal reasons are unlawful if the employer skips a fair hearing, and 'abscondment' claims need proof of contact efforts.

What this practically means

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Executive summary

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The claimant, a trade union, brought this claim on behalf of eight grievants summarily dismissed or alleged to have absconded by the respondent, a limited liability company. The claimant sought declarations of wrongful and unlawful summary dismissal, terminal dues, certificates of service, costs and interest. The respondent denied the claim, asserting valid reasons for dismissal of some grievants and abscondment by others. The hearing proceeded on September 29, 2022 in the respondent's absence, with four grievants testifying. The court framed three issues: whether the grievants were terminated, whether the termination was unfair, and entitlement to relief. On the three grievants whose dismissal was admitted, the court accepted the reasons as valid but found procedural unfairness under section 41 of the Employment Act, since they were dismissed the same day as the alleged misconduct without show cause letters or hearings. As to the five grievants alleged to have absconded, the court held the employer bore the onus of demonstrating efforts to contact them, which was not discharged, and found they were terminated. Remedies were awarded as computed in the memorandum of claim, except service pay, leave allowance, underpayment and overtime, which were rejected for want of evidence of the union's intervention. Compensation was fixed at five months' salary considering years of service and lack of special skills. Judgment was entered for the claimant with costs.

Key legal issues

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01

Whether the termination of Ambrose Sichangi, Samson Barasa and Simon Wafula was substantively and procedurally fair

Holding

Reasons were valid but procedure was unfair; termination did not meet the statutory threshold under section 41

Reasoning

The court accepted the respondent's stated reasons as valid but found no compliance with section 41's procedural requirements. The grievants were dismissed on the same day as the alleged misconduct, indicating no show cause or hearing, offending procedural fairness and natural justice.

p. 4
02

Whether the five grievants alleged to have absconded were in fact terminated

Holding

Found to have been terminated; the abscondment allegation was unsupported by evidence

Reasoning

The onus lay on the employer to demonstrate efforts to contact the allegedly absconding employees. No concrete evidence was placed before the court, so the plea of desertion failed and termination by the respondent was found.

p. 5
03

Entitlement to remedies

Holding

Terminal dues awarded as computed except service pay, leave allowance, underpayment and overtime; compensation limited to five months' salary

Reasoning

Unfair termination having been established, the grievants were entitled to remedies as computed, excluding heads not proved. Considering length of service and absence of special skills, the court awarded five months' salary as compensation.

p. 5

Legal principles established

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  • An employer must prove both valid reasons for termination and compliance with fair procedure
  • An employer alleging abscondment must evidence efforts to contact the employee

Court orders

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  1. 1.A declaration that the 8 grievants were wrongfully and unlawfully summarily dismissed from duty
  2. 2.The respondent to pay each grievant the sum of money as computed in the memorandum of claim filed on April 23, 2018, except service pay, leave allowance, underpayment and overtime
  3. 3.The respondent to pay the claimant's costs of the suit

Authorities

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Legislation

  • Labour Relations Actnot specified
  • Employment Actsections 41(1), 42(1), 43, 44(4)(a), 45, 47(5)

Cases cited (2)

  • David Gichana Omuya v Mombasa Maize Millers Ltd
    [2014] eKLR
  • Simon Mbithi Mbane v Inter Security Services Ltd
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act, 2007 (employment dispute)

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, "Bakery Confectionery Food Manufacturing & Allied Workers v Big Bite Bakers & Confectioners Limited (Cause 9 of 2022) [2023] KEELRC 343 (KLR)", Case Analysis (2023). ELRC Cause (Eldoret), Memorandum of Claim dated April 18, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/343/eng@2023-02-03

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