Kenya Union of Commercial, Food and Allied Workers v Naivas Limited (Cause E029 of 2021) [2023] KEELRC 1671 (KLR)
The bottom line
#A Kenyan court ruled Naivas unfairly fired a cashier for absenteeism because it denied him a hearing with a union representative present.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness under Section 41 of the Employment Act
The termination was procedurally unfair because the grievant was not given notice to attend the hearing with a union representative or a fellow employee of his choice
The court found that although a meeting was held on 21 March 2019 with the cashier, manager and customer care officers, the minutes did not show the presence of an employee appointed by the grievant or a representative of the claimant union. Section 41 is mandatory and applies regardless of the reasons for termination. Its breach compromised the hearing and rendered the summary dismissal unfair, notwithstanding the alleged absenteeism.
Substantive justification for summary dismissal for absenteeism
Absenteeism without permission is a serious breach justifying summary dismissal under Section 44(3) and (4)(a), but the lack of a Section 41 hearing defeats the dismissal
The court acknowledged that an employee who absents himself from work commits a serious breach justifying summary dismissal under Section 44(3) and (4)(a) of the Employment Act. However, even where serious offences justify summary dismissal, the employer must still accord the employee a hearing. The failure to abide the mandatory provisions was not justified.
Remedies for unfair termination
Notice pay at the last wage, three months' gross wage compensation, unpaid leave days and a certificate of service awarded; severance and insurance refund refused
Taking into account the grievant's over nine years of service, three months' gross wage was found appropriate as compensation. Notice pay was due at the last wage of Ksh 32,725. The unpaid leave claim succeeded because the respondent produced no record showing the leave was paid or taken. Severance pay was refused as not being a Section 40 claim, and the insurance refund claim was unsupported.
Legal principles established
#- An employer must, before terminating employment for misconduct, explain the reasons to the employee and accord the employee a hearing in the presence of another employee or a shop floor union representative of their choice, as required by Section 41 of the Employment Act
- Where a disciplinary hearing omits the mandatory presence of an employee's chosen representative, the hearing is compromised and the resulting summary dismissal is unfair
Court orders
#- 1.Judgment entered for the claimant against the respondent
- 2.Compensation of Ksh 98,175
- 3.Notice pay of Ksh 32,725
- 4.Unpaid leave days of Ksh 15,583.33
- 5.Certificate of service to issue in accordance with Section 51 of the Employment Act
- 6.Costs assessed at Ksh 20,000 all inclusive
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination of employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial, Food and Allied Workers v Naivas Limited (Cause E029 of 2021) [2023] KEELRC 1671 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1671/eng@2023-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.