Kenya Union of Commercial Food and Allied Workers v Kenya Credit Traders Limited (Cause E033 of 2022) [2024] KEELRC 2525 (KLR)
The bottom line
#A Kenyan court ruled the dismissal had a valid reason but was still unfair because the employer skipped proper disciplinary procedure, awarding the worker compensation.
What this practically means
#Executive summary
#Key legal issues
#Validity of the reason for termination
The employer proved on a balance of probability that the grievant grossly misconducted himself, a valid and fair reason for summary dismissal under section 44(4)(c) and (g)
The grievant admitted signing the cash sale receipt and witnessing the Contract of Repossession without seeing the customer, contrary to company procedure requiring the customer's presence. This breach led to loss of the washing machine. The court found the grievant acted either negligently or deliberately in cahoots with fellow employees with intent to defraud the employer, and relied on Thomas Sila Nzivo v Bamburi Cement Limited that only reasonable and sufficient grounds, not conclusive proof, were needed.
Procedural fairness under section 41
The employer did not follow the procedure under section 41; the dismissal was unfair and unlawful within section 45 for failing the test of procedural fairness
Although a charge was signed by the grievant, no minutes of the disciplinary hearing were produced and no letter inviting him to the hearing was produced which could have confirmed whether he was notified of his right to be accompanied by a union official or fellow employee. The grievant testified he was not told why he was summoned nor of his right to be accompanied. The court held the employer must strictly comply with section 41.
Appropriate remedy
Reinstatement declined due to lapse of three years; compensation awarded under section 49 together with notice pay and admitted dues
The primary prayer of reinstatement was not appropriate since three years had lapsed since termination. The court awarded one month's notice pay and three months' gross salary as compensation, reduced from the twelve months sought because the grievant served over six years but contributed to the termination by misconduct. The claims for unpaid April 2021 salary and accrued leave were admitted by the respondent and awarded as claimed.
Legal principles established
#- A disciplinary hearing is a serious matter and an employer must strictly comply with section 41 of the Employment Act by notifying the employee of the charges in advance, of the right to be accompanied, and by supplying documentary evidence against him
- The employer bears the burden of proving the reason for termination under section 43 of the Employment Act, failing which the termination is unfair
Court orders
#- 1.Judgment entered for the claimant: Notice Kshs.19,460.00; Compensation Kshs.58,380.00; Salary (April 2021) Kshs.19,460.00; Leave Kshs.17,373.80, totalling Kshs.114,673.80
- 2.The award is subject to statutory deductions
- 3.Costs of the suit to the claimant plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial Food and Allied Workers v Kenya Credit Traders Limited (Cause E033 of 2022) [2024] KEELRC 2525 (KLR)", Case Analysis (2024). Not stated in judgment (memorandum of claim dated 15th June 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2525/eng@2024-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.