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ELRCPartially AllowedCause No 849 of 2019· [2024] KEELRC 1214 (KLR)

Kenya Union of Commercial Food Workers v Platinum Outsourcing and Logistics EA Limited (Cause 849 of 2019) [2024] KEELRC 1214 (KLR)

Employment and Labour Relations Court
24 April 2024
1,637 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court ruled that locking an employee out of her workplace after she refused a new contract was unfair dismissal worth over Kshs.152,000.

What this practically means

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Executive summary

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This first-instance employment claim was originated by a Memorandum of Claim dated 24th October 2019 by a union on behalf of its member, Catherine Munyao, a general worker engaged by the Respondent on 15th September 2015 at a consolidated salary of Kshs.10,164.00, later increased to Kshs.13,632.00. The union alleged that on 8th April 2019 the grievant was summoned before the Human Resource Manager to sign a new contract, offered an explanation for her reluctance, and on 9th April 2019 was denied access to her workplace - an alleged lock out. The Respondent denied the claim, asserting the grievant absconded duty after refusing to sign a new contract. The court framed four issues: whether there was a termination, whether it was wrongful, unfair and unlawful, entitlement to relief, and costs. Relying on sections 9, 41 and 43 of the Employment Act and authorities cited by the claimant, the court found the Respondent adduced no evidence of absconding or of any disciplinary process, and that denial of access to the workplace amounted to constructive and unlawful termination. On a preponderance of evidence the claimant's case prevailed. The court awarded one month's salary in lieu of notice, eight days' salary for April 2019, service pay for three years, and twelve months' compensation for unlawful termination, totalling Kshs.152,850.90, ordered issuance of a certificate of service within thirty days, and awarded costs to the claimant.

Key legal issues

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01

Whether there was a termination of employment of the grievant

Holding

Yes - the grievant was denied access to her workplace after refusing to sign a new contract, amounting to termination by the Respondent

Reasoning

The court found the grievant was excluded from accessing her workplace after she declined to sign a new contract and offered an explanation to the Human Resource Manager. The Respondent's assertion that she absconded duty was unsupported by any evidence. On a preponderance of evidence the claimant made out a probable case of termination.

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02

Whether the termination was wrongful, unfair and unlawful

Holding

It was constructive and unlawful termination; the defence of absconding was not feasible, convincing or possible

Reasoning

The grievant was denied access to her workplace, which the court held amounted to constructive termination and was unlawful. The Respondent produced no evidence of absconding or of a fair disciplinary process, and had declined to cooperate in mediation. Sections 41 and 43 of the Employment Act required substantive and procedural fairness which was not satisfied.

p. 4
03

Whether the grievant was entitled to the relief sought

Holding

Yes - having succeeded on unlawful termination, she was entitled to notice pay, salary for days worked, service pay and twelve months' compensation

Reasoning

Having won on the case of unlawful termination, the grievant became entitled to relief. The court awarded one month's salary in lieu of notice, eight days' salary for April 2019, service pay computed for three years, and twelve months' gross salary as compensation for unlawful termination, plus a certificate of service.

p. 4

Legal principles established

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  • An employee who continues working after lapse of a fixed-term contract is on an open-ended contract entitled to the protections of sections 41 and 43 of the Employment Act
  • A respondent who makes averments without attaching any evidentiary material undermines its defence

Court orders

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  1. 1.One (1) month salary in lieu of notice of Kshs.10,164.00
  2. 2.Eight (8) days worked in April, 2019 - Kshs.3,127.40
  3. 3.Service pay for every year worked, 15 days x 10,164/26 x 3 - Kshs.17,591.50
  4. 4.Twelve (12) months compensation for unlawful termination of employment - Kshs.10,164.00 x 12 months
  5. 5.Total award of Kshs.152,850.90
  6. 6.The Respondent be and is hereby ordered to issue a certificate of service to the grievant within thirty (30) days of the judgment
  7. 7.Costs of the claim to be borne by the Respondent

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 44
  • Employment Act, 2007section 9(2), (3) & (4)

Cases cited (3)

  • Sandra M. Waswa (case cited in Claimant's submissions)
  • Golbal Campaign for the Free Expression (case cited in Claimant's submissions)
  • Samwel Nguru Mutonya v National Bank of Kenya Ltd
Jurisdiction invoked
First-instance claim under the Employment Act, 2007 (ss. 41, 43, 44, 9(2), (3) & (4)) before the Employment and Labour Relations Court

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 Workers v Platinum Outsourcing and Logistics EA Limited (Cause 849 of 2019) [2024] KEELRC 1214 (KLR)", Case Analysis (2024). Cause No 849 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1214/eng@2024-04-24

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