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ELRCPartially AllowedNot stated in judgment

Kenya Union of Commercial, Food and Allied Workers v Victoria Juice Company Limited (Cause 618 of 2019) [2023] KEELRC 1019 (KLR)

Employment and Labour Relations Court
28 April 2023
798 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 firing a worker for being genuinely sick, without any hearing or letter, was unfair and awarded him six years' worth of dues.

What this practically means

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Executive summary

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By a memorandum of claim filed on September 17, 2019, the Claimant union, acting for grievant Samuel Swari Galmagaleh, sued the Respondent employer. The grievant was first employed on August 8, 2011 as a contract employee and confirmed permanent on January 1, 2012 as a sighter, earning Kshs 18,304 basic pay. On April 10, 2018 he fell sick, was diagnosed with bronchitis and malaria and placed on bed rest. On April 11, 2018, on reporting to work, he was denied access to the premises on allegations that he had absconded. He was never issued with an appointment letter, disciplinary letter or termination letter. The union reported a dispute; a conciliator was appointed but the Respondent ignored conciliation. The Respondent, though served, entered no appearance and filed no response, and the cause proceeded undefended. Applying Section 47(5) of the Employment Act, the court accepted the uncontroverted evidence, supported by medical notes and the sick sheet, that the grievant was genuinely unwell. It held that termination occasioned by illness, without any hearing or documentation, was unreasonable and contrary to natural justice. The court allowed the claim: one month's salary in lieu of notice (Kshs 21,049), ten days' salary (Kshs 7,016), house allowance for 72 months (Kshs 197,640), leave pay for 21 days (Kshs 14,734) and seven months' salary as compensation for unfair termination (Kshs 147,343), together with costs of the suit. Judgment was delivered virtually at Nairobi on April 28, 2023 by Abuodha J. N.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the grievant's employment was unfairly terminated following his absence on sick leave
  2. 2.Whether the grievant was denied fair procedure (not issued with appointment, disciplinary or termination letters; condemned unheard)
  3. 3.Whether the grievant was entitled to house allowance, leave pay and outstanding salary

Key legal issues

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01

Whether termination was unfair

Holding

Termination was unfair; the grievant was denied access to the workplace after sick leave, without disciplinary or termination letters and without a hearing

Reasoning

The grievant produced medical notes and a sick sheet showing he was genuinely unwell on April 10, 2018. When he returned to work he was refused entry on allegations of absconding. He received no disciplinary or termination letter and was condemned unheard, contrary to the Employment Act and natural justice. The employer filed no defence or response, so the claimant's evidence stood uncontroverted.

p. 2
02

Quantum of compensation for unfair termination

Holding

Seven months' salary awarded as adequate compensation for an employee of approximately six years' service terminated while unwell

Reasoning

Although the union claimed twelve months' salary, the court, weighing the roughly six years of service and the unreasonableness of terminating an employee for illness, held that seven months' salary would adequately compensate the grievant, to be computed at the salary in effect at termination.

p. 3
03

Entitlement to house allowance, leave pay and salary arrears

Holding

House allowance for 72 months (Kshs 197,640), leave pay for 21 days (Kshs 14,734) and ten days' salary (Kshs 7,016) awarded as prayed

Reasoning

The claim remained undefended; the respondent neither entered appearance nor filed a response. In the absence of any contrary evidence, the court accepted the claimant's pleaded and proved figures for unpaid house allowance over the service period, accumulated leave and salary arrears, awarding them as prayed.

p. 2

Legal principles established

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  • Under Section 47(5) of the Employment Act, the burden of proving unfair termination lies on the employee while the burden of proving the reason for termination lies on the employer
  • In an undefended claim where the employer files no defence and adduces no evidence, the court will believe the uncontroverted evidence of the claimant
  • Terminating an employee because he fell ill and could not report to work is unreasonable and unfair

Court orders

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  1. 1.One month's salary in lieu of notice of termination (Kshs 21,049)
  2. 2.Salary of ten days (Kshs 7,016)
  3. 3.House allowance for 72 months (Kshs 197,640)
  4. 4.Leave pay for 21 days (Kshs 14,734)
  5. 5.Seven months' salary as compensation for unfair termination (Kshs 147,343)
  6. 6.Costs of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (undefended claim for unfair termination and employment benefits)

Relief refused

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12 months' salary as compensation for unfair termination (claimed)

Court found seven months' salary adequate compensation given six years of service and the circumstances of termination

p. 3

Costs

Costs of the suit awarded to the Claimant

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is the Claimants case that the Respondent failed to issue the grievant with letter of appointment contrary to the Law.
p. 2failure to issue appointment letter
That the grievant was condemned unheard contrary to the provisions of Employment Act, 2007, Constitution of Kenya and Rules of Natural Justice.
p. 2fair hearing / natural justice
This was unreasonable on the part of the Respondent as anyone can fall sick and be unable to report to work.
p. 3termination for illness is unreasonable
In the circumstances an award of seven months’ salary would adequately compensate the Claimant.
p. 3quantum of compensation
The Court therefore awards the Claimant as follows:
p. 3final orders - awards
f. Costs of the suit. It is so ordered.
p. 3final orders - costs and disposition

Issues in the judgment

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minor

Typographical errors in the judgment: the return-to-work date is given as '1April 1, 2018' though the memorandum of claim states April 11, 2018

minor

Costs appear both as item (f) in the list of monetary awards and as a separate costs order; also the claim heading merges union claim with the individual grievant's reliefs

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 Commercial, Food and Allied Workers v Victoria Juice Company Limited (Cause 618 of 2019) [2023] KEELRC 1019 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1019/eng@2023-04-28

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