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ELRCPartially AllowedELRC Cause (Memorandum of Claim dated 8th September 2023)· [2024] KEELRC 1702 (KLR)

Kenya Union of Commercial and Food Allied Workers Union v Woolmat Limited (Employment and Labour Relations Cause E043 of 2023) [2024] KEELRC 1702 (KLR)

Employment and Labour Relations Court
2 July 2024
HWHellen Wasilwa
3,408 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Naivas must pay a former employee nearly Kshs 500,000 because an employer cannot discipline a worker twice over the same offence.

What this practically means

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Executive summary

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The claimant union, acting for its member David Muoti Nyambwembe (the grievant), challenged his summary dismissal by Naivas Limited for displaying expired goods on shelves. The grievant, employed since 2002, had in September 2022 been shown cause, subjected to a disciplinary hearing and issued a warning letter dated 11th October 2022 over expired yoghurt and sausages. Days later, further show cause letters and additional disciplinary hearings followed concerning expired beef chipolata, culminating in his dismissal on 11th November 2022. He alleged the process was flawed, discriminatory, and motivated by his union membership, and sought reinstatement or, alternatively, notice pay, leave, service pay and compensation. The respondent maintained the dismissal was for a valid reason and followed due procedure, that the grievant was in charge of replenishing shelves, that he received two months' notice pay, leave and service pay in his terminal dues of Kshs 248,348, and relied on Wilson Waithaka v Barclays Bank. The court held that the grievant had been taken through a disciplinary process that concluded with a warning, and the respondent could not reopen discipline on the same issues; the repeated process was flawed, rendering the dismissal unfair and unjustified contrary to sections 41 and 45 of the Employment Act. The court awarded compensation of ten months' salary (Kshs 435,560), one month's notice pay (Kshs 43,556) and untaken leave (Kshs 12,056), totalling Kshs 491,172 less statutory deductions, plus costs and interest. Service pay and reinstatement were not granted. Judgment delivered by Hellen Wasilwa J on 2nd July 2024.

Key legal issues

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01

Whether termination was for a valid reason and in accordance with fair procedure under sections 41 and 45 of the Employment Act

Holding

The dismissal was unfair because the grievant had already been disciplined and warned on the same issue of expired goods, and could not be subjected to a fresh disciplinary process on the same matters.

Reasoning

The court traced the chronology: the grievant was shown cause for displaying expired goods, heard, and issued a warning on 11th October 2022, closing that disciplinary process. Thereafter fresh show cause letters and further hearings were conducted on the same issue, culminating in dismissal. The court held litigation and discipline must come to an end and that the repeated processes were flawed, failing the requirements of sections 41 and 45.

p. 6
02

Whether the grievant was discriminated against for union membership

Holding

Claim not established as the basis of the finding; dismissal was held unfair on procedural grounds rather than on the discrimination allegation.

Reasoning

The claimant alleged the grievant was targeted as a shop steward to remove him from union membership. The respondent argued there was no link between union membership since 2017 and termination in 2022. The court did not found its decision on discrimination but on the flawed repeated disciplinary process, leaving the discrimination allegation unadopted.

p. 5

Legal principles established

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  • Once a disciplinary process has concluded with a warning, an employer cannot subject the employee to a second disciplinary process on the same issues; doing so is a flawed process rendering dismissal unfair.

Court orders

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  1. 1.Compensation for unfair termination equivalent to 10 months' salary (Kshs 435,560)
  2. 2.One month's notice pay of Kshs 43,556
  3. 3.Leave not taken of Kshs 12,056
  4. 4.Total award of Kshs 491,172 subject to statutory deductions
  5. 5.Respondent to pay costs of the suit
  6. 6.Interest at court rates from the date of judgment
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (termination of employment claim)

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 and Food Allied Workers Union v Woolmat Limited (Employment and Labour Relations Cause E043 of 2023) [2024] KEELRC 1702 (KLR)", Case Analysis (2024). ELRC Cause (Memorandum of Claim dated 8th September 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1702/eng@2024-07-02

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