Kenya Engineering Workers Union v Farm Engineering Industries Limited (Employment and Labour Relations Cause E003 of 2022) [2023] KEELRC 924 (KLR)
The bottom line
#A Kenyan court ruled a welder's dismissal unfair because his co-accused colleague only got a warning, but reduced his compensation due to his own conduct.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the dismissal
The dismissal was procedurally fair; the grievant was issued show cause letters, invited to a disciplinary hearing and accompanied by a union representative.
The court found no dispute that the grievant received a show cause letter, an invitation to a disciplinary hearing, and was told he could attend with a representative of his choice. He attended with a union representative. His only complaint was attendance by an outsourced agent, which did not vitiate the process. The process complied with Section 41 of the Employment Act.
Substantive fairness of the dismissal
The dismissal was substantively unfair; the penalty of dismissal was disproportionate and discriminatory compared to the co-accused who received only a warning.
The grievant's alleged accomplice, James Oloo Ochieng, received only a warning letter while the grievant was dismissed, which the court termed discrimination and double standards. The grievant had 18 years without misconduct and had been elected a union official shortly before dismissal. A reasonable employer would not have dismissed him on those grounds.
Remedies
One month's statutory notice pay and seven months' salary as compensation for unfair termination awarded; two months' notice, terminal benefits and 12 months' compensation refused.
Entitlement to two months' notice and service pay/gratuity could not be established as the CBA and appointment letter were not produced. Compensation under Section 49(4) and 50 was reduced because the grievant contributed to his dismissal through improper conduct in seeking employee records.
Legal principles established
#- A penalty of dismissal that is too severe relative to the transgression, particularly where a co-accused received only a warning, may render a termination substantively unfair.
- The burden on an employer under Section 43 of the Employment Act is to establish a valid reason that would cause a reasonable employer to terminate employment.
Court orders
#- 1.Declaration that the grievant was unfairly dismissed
- 2.Payment of one month's salary in lieu of dismissal notice at Kshs 35,561/-
- 3.Seven months' salary as compensation for unfair termination at Kshs 248,927/-
- 4.Costs of the suit and interest thereon until payment in full
- Jurisdiction invoked
- Article 162(2) Constitution / Employment and Labour Relations Court Act (establishing ELRC jurisdiction over employment disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Engineering Workers Union v Farm Engineering Industries Limited (Employment and Labour Relations Cause E003 of 2022) [2023] KEELRC 924 (KLR)", Case Analysis (2023). Not stated in judgment (Memorandum of Claim dated January 14, 2022, filed January 25, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/924/eng@2023-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.