Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in judgment· [2024] KEELRC 241 (KLR)

Amalgamated Union of Kenya Metal Workers v Treadsetters Limited (Cause E383 of 2021) [2024] KEELRC 241 (KLR)

Employment and Labour Relations Court
15 February 2024
NMNzioki Wa Makau
3,225 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled CMC Motors unfairly sacked four workers, awarding them compensation because the company never produced its audit report.

What this practically means

#

Executive summary

#
The Claimant Union sued the Respondent on behalf of four Grievants dismissed on 16th December 2019 following an audit/stock take at the Respondent's TRM Branch that allegedly revealed stock variances and gross misconduct. The Union alleged the dismissals were unprocedural, premeditated, and motivated by the Grievants' joining the Union in November 2019, and sought a declaration of unfair termination, reinstatement, alternatively CBA terminal dues, twelve months' compensation, and costs. The Respondent justified the dismissals on documented misconduct, denied anti-union animus, contended fair procedure was observed, and opposed reinstatement as impracticable after more than three years. The Court found the Respondent failed to produce the audit/investigation report said to reveal the misconduct, leaving no evidence of the alleged delinquency, and noted that replacement staff were ready at suspension and cheques for terminal dues were prepared before the disciplinary hearing, indicating premeditation. The termination was held unfair and unlawful for failure of both substantive justification and procedural fairness. However, the discrimination claim failed, as union dues were deducted and remitted and the Respondent was not shown to be anti-union. Reinstatement was refused: the Grievants had been replaced before dismissal, over four years had passed, and animus existed between the parties. The Court instead awarded each Grievant unpaid house allowance for 12 months and five months' salary as compensation under section 49 of the Employment Act, with interest at court rates from the date of judgment, and costs to the Claimant. Judgment was delivered at Nairobi on 15th February 2024 by Nzioki Wa Makau, Judge.

Key legal issues

#
01

Validity of reasons for termination (substantive fairness)

Holding

The termination was substantively unfair because the Respondent failed to produce the audit/investigation report allegedly revealing the misconduct and stock variances

Reasoning

The Court found that the audit/investigation report said to have revealed stock variances and misconduct was never produced to the Grievants or to the Court. Without it there was no evidence of the alleged delinquency. The Respondent's conduct - replacement staff ready at suspension, cheques prepared before the hearing, and rapid succession of events - cast the termination in a bad light and suggested the process was prompted by union activities.

p. 5
02

Procedural fairness under sections 41 and 45 of the Employment Act

Holding

The Respondent failed the procedural fairness test; the show cause meeting was informative and premeditation was demonstrated by the ready cheques and replacement staff

Reasoning

The Court held that the employer had to demonstrate the allegations were not unfounded to satisfy section 45. Premature preparation of terminal dues cheques, instant replacement of the Grievants during suspension and refusal to produce the investigation report showed a premeditated decision. The Grievants were not genuinely heard, so the procedure under section 41 was not met.

p. 5
03

Discrimination on grounds of trade union membership

Holding

No discrimination was proved; there were union deductions and remittances per payslips and the Respondent was not shown to be anti-union

Reasoning

Although the Grievants' problems began soon after joining the Union, the Court found evidence that other union members continued working for the Respondent and that union dues were being deducted and remitted per payslips. The Respondent was therefore not shown to be anti-union as far as these Grievants were concerned.

p. 5
04

Reinstatement as a remedy under section 49

Holding

Reinstatement was refused as impracticable due to prior replacement, passage of over four years, and demonstrated animus

Reasoning

The Court identified three factors militating against reinstatement: the Grievants had already been replaced before dismissal; more than four years had elapsed since the late 2019 termination; and there was demonstrated animus between the Respondent and the Grievants/Claimant. Compensation was held to be the appropriate recompense instead of forcing the Respondent to accommodate the Grievants.

p. 6

Legal principles established

#
  • An employer relying on an audit or investigation as the basis for termination must produce and disclose that report and demonstrate the allegations were not unfounded; failure to do so defeats both substantive justification and procedural fairness
  • Section 45 of the Employment Act places the burden on the employer to prove termination was in accordance with fair procedure under section 41 and that the grounds were valid

Court orders

#
  1. 1.Declaration finding the termination of the four Grievants unfair and unlawful
  2. 2.1st Grievant Hellen Gitiri Baiyu: house allowance unpaid for 12 months (Kshs 90,450) and 5 months' salary as compensation (Kshs 288,937.50)
  3. 3.2nd Grievant Msagha Mwakideu Mkilo: house allowance unpaid for 12 months (Kshs 41,400) and 5 months' salary as compensation (Kshs 132,250)
  4. 4.3rd Grievant Josephat Njenga Thuo: house allowance unpaid for 12 months (Kshs 54,000) and 5 months' salary as compensation (Kshs 172,500)
  5. 5.4th Grievant Eric Ndegwa Mbuthia: house allowance unpaid for 12 months (Kshs 54,000) and 5 months' salary as compensation (Kshs 172,500)
  6. 6.Interest at court rates on the awarded sums from the date of judgment till payment in full
  7. 7.Costs of the suit to the Claimant

Authorities

#

Legislation

  • Constitution of KenyaArticles 36, 41, 47 and 50
  • Employment ActSections 41, 41(2), 43, 45, 45(1) and (2)(c), 47, 47(5), 49, 49(1)(c)

Cases cited (3)

  • Barrack Otieno Ombima v Farouk & 2 others
    [2016] eKLR
  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others
    [2019] eKLR
  • Lawrence Onyango Oduori v Kenya Commercial Bank Ltd
    [2014] eKLR
Jurisdiction invoked
Articles 36, 41, 47 and 50 of the Constitution of Kenya 2010 and sections 41, 43, 45, 47 and 49 of the Employment Act 2007

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Amalgamated Union of Kenya Metal Workers v Treadsetters Limited (Cause E383 of 2021) [2024] KEELRC 241 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/241/eng@2024-02-15

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