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ELRCPartially AllowedNot stated in judgment (Memorandum of Claim dated January 14, 2022, filed January 25, 2022)· [2023] KEELRC 924 (KLR)

Kenya Engineering Workers Union v Farm Engineering Industries Limited (Employment and Labour Relations Cause E003 of 2022) [2023] KEELRC 924 (KLR)

Employment and Labour Relations Court
20 April 2023
2,778 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant union challenged the summary dismissal of its member and grievant, Paul Odhiambo Ogolla, a Welder employed by the Respondent from 2002 until his dismissal in June 2021 on allegations of attempting to corruptly access the Respondent's confidential employee records. The grievant received a show cause letter, was suspended, and appeared before a disciplinary committee accompanied by a union representative, culminating in summary dismissal dated June 22, 2021. The union alleged the dismissal was a witch hunt arising from the grievant's election as a union official and violated Articles 36 and 47 of the Constitution. The court framed three issues: whether the dismissal was unfair, entitlement to remedies, and costs. On procedure, the court found the Respondent complied with Section 41 of the Employment Act and the dismissal was procedurally fair. However, on substance, the court held that a reasonable employer would not have dismissed the grievant on the stated grounds: his alleged accomplice received only a warning letter, which the court termed double standards and outright discrimination, and the timing suggested union victimisation. The dismissal was held substantively unfair. Remedies were limited: the court awarded one month's statutory notice pay of Kshs 35,561 and seven months' salary (Kshs 248,927) as compensation for unfair termination, reduced because the grievant contributed to his dismissal. Claims for two months' notice, terminal benefits/service pay and twelve months' compensation failed for lack of proof, as the CBA and appointment letter were not produced. Costs were awarded to the Claimant with interest.

Key legal issues

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01

Procedural fairness of the dismissal

Holding

The dismissal was procedurally fair; the grievant was issued show cause letters, invited to a disciplinary hearing and accompanied by a union representative.

Reasoning

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.

p. 5
02

Substantive fairness of the dismissal

Holding

The dismissal was substantively unfair; the penalty of dismissal was disproportionate and discriminatory compared to the co-accused who received only a warning.

Reasoning

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.

p. 6
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Remedies

Holding

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.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Declaration that the grievant was unfairly dismissed
  2. 2.Payment of one month's salary in lieu of dismissal notice at Kshs 35,561/-
  3. 3.Seven months' salary as compensation for unfair termination at Kshs 248,927/-
  4. 4.Costs of the suit and interest thereon until payment in full

Authorities

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Legislation

  • Employment ActSections 41, 43, 44, 45, 46, 47(5), 49(4), 50, 35(6)
  • Labour Relations ActSection 34(1)
  • Constitution of KenyaArticles 36 and 47

Cases cited (4)

  • Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited
    [2013] eKLR
  • Hosea Akunga Ombwori v Bidco Oil Refineries Limited
    (2017) eKLR
  • Charles Musungu Odana v Kenya Ports Authority
    [2019] eKLR
  • Stephen B Nguthi v Del Monte (K) Ltd
    [2007] eKLR
Jurisdiction invoked
Article 162(2) Constitution / Employment and Labour Relations Court Act (establishing ELRC jurisdiction over employment disputes)

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 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.