Unilever Tea (k) Limited v Kenya Plantation & Agricultural Workers Union
The bottom line
#Kenya's Court of Appeal threw out reinstatement and compensation for a dismissed Unilever Tea worker, finding her summary dismissal was justified and fair.
What this practically means
#Executive summary
#Key legal issues
#Substantive justification for summary dismissal
The appellant firmly established a reason for summary dismissal for gross misconduct based on the grievant's admission seeking forgiveness, the Joint Consultation Report, and clause 24 of the CBA; the trial judge's contrary finding had no basis.
The grievant admitted in evidence to seeking forgiveness for the incident, and an Industrial Relations Joint Consultation Report signed by the appellant's management and the union's representatives on 31st October 2012 expressly agreed that destruction of company property, leaving the workplace without permission and threatening one's life amounted to gross misconduct and that summary dismissal would follow. Under section 44(4) of the Employment Act and clause 24 of the CBA, the employer thereby established a valid reason for summary dismissal, which the trial judge erred in disregarding.
Procedural fairness under section 41 of the Employment Act
There was substantial compliance with section 41: the grievant received a show cause letter, attended the disciplinary hearing with shop stewards present, and wilfully refused to answer questions, thereby impeding full compliance.
Section 41 requires explanation of grounds in a language the employee understands and an opportunity to have a representative present and make representations. The grievant was issued a show cause letter dated 13th September 2012, attended the hearing with three shop stewards, and was asked to respond; she refused on the basis of a claimed cultural bar on pregnant women participating in cases, unsupported by evidence. Following Beatrice W. Mbogo v Oceanfreight and Sotik Highlands Tea Estates, section 41 is not a mechanical checklist; substance prevails, and the employer was entitled to proceed in her absence with the stewards present.
Jurisdiction to order reinstatement and award both main and alternative reliefs
The trial judge exceeded his jurisdiction by ordering reinstatement three years after dismissal, contrary to section 12(3)(vii) of the ELRC Act, and by awarding both reinstatement and 12 months' compensation; respondent's counsel conceded this.
Section 12(3)(vii) of the Employment and Labour Relations Court Act bars reinstatement where three years have lapsed from dismissal; the dismissal was on 31st October 2012 and judgment delivered 14th December 2015. The respondent's counsel conceded that awarding both the main relief (reinstatement) and the alternative relief (compensation) was in error. Having found the dismissal lawful and fair, the section 49 remedies were unavailable in any event, so all consequential orders fell away.
Duty of a first appellate court
As a first appeal, the Court must re-evaluate and consider afresh the evidence and reach its own conclusions.
Citing Rule 31 of the Court's Rules and Abok James Odera v John Patrick Machira, the Court restated that on a first appeal it must re-evaluate, re-assess and re-analyse the evidence on the record and determine whether the trial judge's conclusions should stand, giving reasons either way.
Legal principles established
#- Section 41 of the Employment Act requires substance, not a mechanical checklist; an employer substantially complies where the employee is notified of the charges, given a reasonable opportunity to respond, and the employee's explanations are considered — an employee who wilfully refuses to answer questions cannot later claim procedural unfairness.
- Where an employee's admission and a joint Industrial Relations Joint Consultation Report between employer and union representatives establish gross misconduct, the employer has substantive justification for summary dismissal under section 44(4) of the Employment Act.
- An Employment and Labour Relations Court has no jurisdiction to order reinstatement where three years have lapsed from the date of dismissal, and a court cannot award both the main relief of reinstatement and the alternative relief of compensation.
Court orders
#- 1.The appellant's appeal is allowed in its entirety
- 2.All the consequential orders issued by the Employment and Labour Relations Court (Marete J) on 14th December 2015 are set aside
- 3.No order as to costs
- On appeal from
- Employment and Labour Relations Court at Kericho
- Cause No 9 of 2014
- Jurisdiction invoked
- First appeal to the Court of Appeal under Rule 31 of the Court of Appeal Rules; the matter arises from the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Zizi v Sifa Investment Limited (Cause E098 of 2023) [2025] KEELRC 972 (KLR)[2025] KEELRC 972 (KLR)27 Mar 2025applied
- Kamuti v KCB Bank Kenya Limited (Employment and Labour Relations Cause E684 of 2022) [2025] KEELRC 845 (KLR)[2025] KEELRC 845 (KLR)14 Mar 2025applied
- Ashton Mombasa Apparel (EPZ) Limited v Tailors and Textile Workers Union (Cause E014 of 2024) [2025] KEELRC 444 (KLR)[2025] KEELRC 444 (KLR)20 Feb 2025applied
Cite this brief
#Cite this brief
Caselaw, "Unilever Tea (k) Limited v Kenya Plantation & Agricultural Workers Union", Case Analysis (2024). Employment and Labour Relations Court Cause No 9 of 2014 (appeal therefrom; appeal from ELRC Kericho). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/540/eng@2024-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.