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IndustrialPartially AllowedCause 36 of 2007· [2007] KEIC 5 (KLR)

Tailors & Textiles Workers’ Union v Emke Garments Kenya Ltd (Cause 36 of 2007) (Civ) [2007] KEIC 5 (KLR)

Industrial Court of Kenya
26 July 2007
CCCP ChemuttutOWOA WafulaJKJM Kilonzo
1,463 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled an employee cannot be fired without notice and a fair chance to respond, awarding him full compensation when the employer stayed silent.

What this practically means

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Executive summary

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The Minister for Labour referred this dispute to the Industrial Court on 4 April 2007 under Section 8 of the Trade Disputes Act, Cap. 234, concerning the alleged wrongful dismissal of Mr. Andrew Mbwagwa, a mass production machinist employed by Emke Garments Kenya Ltd since 1995, who was dismissed on or about 23 November 2002 allegedly for low production, laziness and inefficiency. Despite repeated notices and warnings, the Company failed to file a reply memorandum or appear at the hearing, which proceeded ex parte on 19 July 2007. The Union, through Mr. Ngatia, submitted that the grievant had served diligently for some eight years with a clean record, and that his dismissal without a charge-sheet, notice or enquiry was wrongful and illegal. It sought reinstatement or, alternatively, terminal benefits and maximum compensation of 12 months under Section 15(1)(ii) of the Act, totalling Kshs. 173,183. The Labour Investigator, Mr. J.B. Mwangi, had earlier found the dismissal callous and unwarranted and recommended it be reduced to normal termination, but the Company rejected that recommendation. The Court held that dismissal is a serious penalty that cannot be imposed without notice and a reasonable opportunity to be heard, and that the grievant's dismissal without any enquiry flagrantly violated the audi alteram partem rule of natural justice. Noting that the claim stood unchallenged and that the Company had procrastinated, the Court granted the Union's demand in full and ordered the Company to pay Kshs. 173,183 to the grievant within thirty days. The members were in full agreement with the decision.

Key legal issues

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Whether the summary dismissal for alleged laziness and inefficiency without notice, charge-sheet or enquiry was lawful

Holding

The dismissal was wrongful and a flagrant violation of natural justice; the Union's unchallenged claim was granted in full

Reasoning

The grievant had worked for about seven to eight years without any warning letter, undermining the allegation of laziness and inefficiency. Before dismissal he was given no written charge-sheet, no notice of the alleged misconduct and no opportunity to defend himself. The Court held that dismissal cannot be imposed without notice and a hearing, and that even an oral or written hearing before management would have sufficed. As the Company filed no reply statement and failed to appear, the claim stood unchallenged and was granted in full with 12 months' compensation.

p. 3

Legal principles established

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  • Dismissal of an employee requires notice and a reasonable opportunity to be heard; dismissal without a charge-sheet, notice or enquiry violates the rule of natural justice (audi alteram partem).

Court orders

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  1. 1.The Company is ordered to pay the Union's demand (wages unpaid Kshs. 4,416; house allowance Kshs. 68,159; notice pay Kshs. 9,984; unpaid leave Kshs. 30,720; 12 months' compensation Kshs. 59,904; total Kshs. 173,183) to the grievant within thirty (30) days from the date of the award
Jurisdiction invoked
Section 8 of the Trade Disputes Act, Cap. 234 (reference by the Minister for Labour and Human Resource Development)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Tailors & Textiles Workers’ Union v Emke Garments Kenya Ltd (Cause 36 of 2007)  (Civ) [2007] KEIC 5 (KLR)", Case Analysis (2007). Cause 36 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2007/5/eng@2007-07-26

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