Ruthaka Farmers Co-operative Society v Kaburi (Employment and Labour Relations Appeal E009 & E010 of 2022 (Consolidated)) [2023] KEELRC 849 (KLR)

The appellate court found the trial court had summarized facts, framed issues and analyzed evidence in paragraphs 18 to 23 of its judgment, satisfying the duty to give reasons in part. However, it failed to analyze the contestation over the applicable CBA, which formed the basis of the terminal dues claim, and ignored evidence of computation and payment of terminal dues into the respondent's account, which affected the quantum awarded.

The court examined the attendance register (pages 73-91 of the record) and confirmed the respondent was a perennial absentee, especially in April to June 2017, absent on numerous enumerated days. She produced no evidence of permission or good cause. The trial court therefore erred in holding that absenteeism was not proved; the reason was valid and fair within section 44(4) as read with section 45(2) of the Employment Act.

Although the reason for dismissal was valid, the respondent was neither served with prior notice nor afforded an opportunity to be heard before termination, contrary to the mandatory procedure in section 41 of the Employment Act. The trial court's finding of procedural unfairness was upheld; the lapse rendered the termination unfair and actionable, justifying notice pay and compensatory damages.

Section 59(5) of the Labour Relations Act provides a collective agreement becomes enforceable upon registration by the Industrial Court. The respondent bore the burden of proving registration and adduced none, so the 2015 CBA could not found the claim for salary and house allowance arrears. Dues were recalculated under the undisputed 2012-2013 CBA: gratuity of Kshs.257,894.00, admitted leave of Kshs.11,568.00 and four months' notice pay of Kshs.95,222.40, less sums paid.

Having found the termination procedurally unfair, the trial court had a statutory duty under sections 49 and 50 of the Employment Act to assess compensation but said nothing about it. Rather than remit the file, the court found the record sufficient and awarded six months' gross salary, considering the respondent's 13 years of service, her contributory misconduct, and her unapologetic intention to exit and pursue a political career.