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ELRCPartially AllowedNot stated in judgment

Kariuki & another v Multi Packaging Limited t/a Print Pak (Cause 1030 of 2018) [2023] KEELRC 3129 (KLR)

Employment and Labour Relations Court
10 November 2023
4,034 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that an employer who cannot prove why and how it fired staff must pay compensation, notice pay, and wage underpayments.

What this practically means

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Executive summary

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The two Claimants, employed as sorters at the Respondent's finishing department on Likoni Road, Nairobi from 1996 and 1997, claimed their services were terminated without notice on 31st October, 2017 after they raised concerns over their terms of employment. They sought declarations of unfair termination, notice pay, underpayments, house allowance, service pay and 12 months' compensation. The Respondent denied terminating them, contending the Claimants declined to sign new contracts, demanded permanent employment and absconded on their own volition. The court framed three issues: whether the Claimants were terminated or left voluntarily; whether the reason and process were fair; and entitlement to reliefs. On the evidence, the court found the Respondent had not rebutted the Claimants' account that they were fired and denied entry to the premises, and that the 1st Claimant was issued a certificate of service; it therefore found the Claimants were terminated. The alleged absconding, which would constitute gross misconduct under section 44(4)(g) of the Employment Act, was not proved; no warnings were issued and no effort made to have the Claimants return. No show cause letter or disciplinary hearing was convened, breaching section 41, rendering the termination substantively unjustified and procedurally flawed under sections 45 and 47(5). The claim was allowed in part: each Claimant received one month's notice pay (Kshs 11,818), underpayment plus house allowance (Kshs 117,316.78) computed against the Regulation of Wages orders, and 8 months' salary as compensation (Kshs 94,544), totalling Kshs 223,678.78, plus costs and certificates of service, subject to taxes and statutory deductions.

Questions the Court framed

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

  1. 1.Whether the Claimants' were terminated from employment or they left on their own volition
  2. 2.Whether the reason for the Claimants' termination was fair and the process procedural
  3. 3.Whether the Claimants are entitled to the reliefs sought

Key legal issues

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01

Whether the Claimants were terminated or left employment voluntarily

Holding

The Respondent failed to rebut the Claimants' account; the court found the Claimants were terminated on 31st October, 2017.

Reasoning

The Claimants said they were fired at the Production Manager's office and denied entry the next day; their letter seeking clarification went unanswered. No warning letters existed over alleged absconding. The court found it improbable that employees who worked for over 20 years, including without contracts from 2015, would simply abscond. A certificate of service was issued to the 1st Claimant.

p. 7
02

Whether there was a valid and fair reason for termination

Holding

The alleged absconding amounted to gross misconduct under section 44(4)(g) but was not proved; termination was not substantially justified.

Reasoning

No evidence was led of any effort to contact the Claimants to return to work at risk of termination. No warnings were issued for allegedly refusing to sign contracts from 2015. The Respondent's MD was unaware of the alleged refusal to sign the 2017 contracts despite the signing date of 1st September, 2017. The absconding allegation was thus unproved and the reason invalid.

p. 7
03

Whether the termination procedure was fair

Holding

The termination was procedurally flawed and unfair under section 45 of the Employment Act.

Reasoning

Section 41 requires notification and hearing before termination on grounds of misconduct. The Respondent's witness acknowledged that no disciplinary hearing was convened and no show cause letter issued. No warnings were given despite the alleged conduct dating back to 2015. The burden of justifying dismissal under section 47(5) is on the employer, which the Respondent failed to discharge.

p. 8

Legal principles established

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  • For termination to pass the fairness test there must be both substantive justification and procedural fairness.
  • The burden of proving and justifying the grounds of termination lies on the employer.
  • The court applies the reasonable employer test to the reason for termination and will not over-analyze it.

Court orders

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  1. 1.Payment of one month's salary in lieu of notice of Kshs. 11,818 to each Claimant
  2. 2.Payment of underpayment plus house allowance of Kshs. 117,316.78 to each Claimant
  3. 3.Payment of 8 months' salary as compensation for unfair termination of Kshs. 94,544 to each Claimant
  4. 4.Total award of Kshs. 223,678.78 to each Claimant
  5. 5.Claimants to have costs of the suit
  6. 6.Award to be subject to taxes and statutory deductions where applicable
  7. 7.Claimants entitled to certificates of service under section 51 of the Employment Act

The bench

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

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007)

Relief refused

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Underpayments computed as machine operators' rates

Claimants were general labourers with no evidence of skilled training as machine operators

p. 8

12 months' gross salary compensation

Court awarded 8 months' salary instead, considering length of service

p. 8

Service pay for the full 9 years claimed at figures pleaded

Service pay awarded at 15 days' pay per complete year of service as the Respondent did not show NSSF registration

p. 8

Costs

The claimants' shall further have cost of the suit.

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.

In conclusion the Claimants' claim is allowed as follows
p. 8Final orders and awards
The claimants' shall further have cost of the suit.
p. 9Costs order
This award shall where applicable be subject to taxes and statutory deductions
p. 9Taxation of award
There being no conclusive evidence that the Respondent did not fire the Claimants I am convinced that the Respondent terminated the Claimants employment on 31st October, 2017 and proceeded to issue 1st Claimant with certificate of service.
p. 7Finding on termination
for termination to pass the fairness test, it must be shown that there was not only substantive justification for termination but also procedural fairness.
p. 7Substantive and procedural fairness

Issues in the judgment

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material

Name of the Respondent is not stated anywhere in the judgment; the judgment only refers to 'the Respondent'.

material

Inconsistent arithmetic in the underpayment awards: the May 2013-April 2015 computation is stated as 3,673.09 x 24 months but awarded as Kshs 35,905.2, identical to the 12-month May 2015-April 2016 computation of 2,992.1 x 12 months, suggesting an error in the figures.

minor

Subtotal of individual awards does not tally with the stated total (11,818 + 117,316.78 + 94,544 = 223,678.78 only if the underpayment figure is read as stated; the computation paragraphs yield different figures).

minor

Judgment states the Claimants worked 'approximately nine years' for purposes of compensation although the pleadings and evidence indicate employment from 1996/1997 to 2017, over 20 years.

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, "Kariuki & another v Multi Packaging Limited t/a Print Pak (Cause 1030 of 2018) [2023] KEELRC 3129 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3129/eng@2023-11-10

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