Amalgamated Union of Kenya Metalworks v Power Protection Limited (Cause E596 of 2020) [2023] KEELRC 2246 (KLR)
The bottom line
#A Kenyan court awarded two employees 12 months' salary for unfair dismissal after their employer failed to appear or explain the termination.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the Grievants' employment was procedurally and substantively fair
The termination was both procedurally and substantively unfair; the Respondent, having failed to appear, did not discharge the statutory burdens under sections 41, 43 and 45 of the Employment Act.
Section 41 prescribes a mandatory four-component procedure (notification, hearing, accompaniment, consideration). The Respondent tendered no evidence, so the Grievants' unchallenged testimony that procedure was not followed stood. The termination letters gave no reasons, so the employer failed to prove reasons under section 43 or their validity under section 45. The Claimant discharged its burden under section 47(5).
Whether the Claimant was entitled to compensation, notice pay, salary arrears and service pay
Twelve months' gross salary compensation, one month's notice pay and service pay were awarded; the salary arrears claim failed for want of specific proof.
Under section 49(1)(c) the award is discretionary; the court considered the manner of termination, breach of fair labour practices and association rights, and length of service, granting 12 months' gross salary. Notice pay followed sections 35 and 36 as no notice issued. Service pay under section 35 was granted at 15 days' salary per year worked for eight years. The arrears claim, being special damage, was rejected as unproved.
Legal principles established
#- Procedural and substantive fairness together constitute the total unit of fairness in termination; absence of either deprives the termination of fairness.
- Where an employer tenders no evidence, it cannot discharge the legal burdens under sections 41, 43 and 45 of the Employment Act.
- Section 41 of the Employment Act sets out four mandatory components of fair procedure: notification, hearing, right of accompaniment, and consideration of representations.
Court orders
#- 1.A declaration that the termination of the grievants' employment was procedurally and substantively unfair.
- 2.Compensation pursuant to section 49(1)(c) of the Employment Act being 12 months gross salary, Kshs. 217,500 to the 1st Grievant (Daniel Muteti), and KShs. 209,400 to the 2nd Grievant.
- 3.One month's salary in lieu of notice, KShs 18,125 for the 1st Grievant, and KShs. 17,450 for the 2nd Grievant.
- 4.Service pay, KShs.72,500 for the 1st Grievant, and KShs. 69,800 for the 2nd Grievant.
- 5.Costs of this suit.
- 6.Interest on the sums awarded at court rates from the date of judgment till full payment.
- Jurisdiction invoked
- Jurisdiction under the Employment Act, including section 49(1)(c); Article 36(1) and 41(2) of the Constitution invoked on freedom of association and fair labour practices
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amalgamated Union of Kenya Metalworks v Power Protection Limited (Cause E596 of 2020) [2023] KEELRC 2246 (KLR)", Case Analysis (2023). Memorandum of Claim dated 4th September 2020 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2246/eng@2023-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.