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ELRCPartially AllowedCause No. 66 of 2000· [2002] KEELRC 10 (KLR)

KENYA GAME, HUNTING & SAFARIS WORKERS’ UNION v PRIVATE SAFARIS (E.A.) LTD (Cause 66 of 2000) [2002] KEELRC 10 (KLR)

Industrial Court of Kenya
11 October 2002
2,332 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court ruled that firing an employee without stating the reasons in writing is wrongful, and awarded him over Kshs.569,000.

What this practically means

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Executive summary

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The Minister for Labour referred this trade dispute to the Industrial Court under Section 8 of the Trade Disputes Act, Cap. 234. The Union challenged the suspension and termination of its member, Abud Mohammed Mittwan, and the reduction of his monthly salary from Kshs.34,775 to Kshs.27,000 through the withdrawal of fixed allowances. The Union alleged victimisation for trade union activities and breach of natural justice, and sought reinstatement or, alternatively, terminal benefits totalling Kshs.360,388. The Company contended that the grievant, as an office employee from 1993, was not entitled to the fixed allowances, which had been inadvertently continued until May 1997, and that he was lawfully terminated after threatening legal action. The court found that the suspension and termination were wrongful because the letters disclosed no particulars of any offence, and that the allowances formed part of the grievant's remuneration which could not be withdrawn except by mutual agreement, applying Blackburn J.'s reasoning in J.B. Saunders v. The Postmaster General. Reinstatement was refused because nearly five years had passed and relations were uncordial. The court reduced the disciplinary termination to normal termination, awarded Kshs.360,388 in terminal benefits plus Kshs.208,650 as six months' salary compensation for loss of employment, totalling Kshs.569,038, subject to lawful statutory deductions. Both members of the Court supported the decision.

Key legal issues

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01

Whether the suspension and termination were wrongful

Holding

The suspension and termination were wrongful because the letters gave no particulars of any offence and merely cited reasons 'well known' to the grievant

Reasoning

The court found from the submissions and documentary evidence that the grievant was suspended and terminated on disciplinary grounds solely because he threatened legal action over the withdrawal of his allowances. The suspension letter said only 'on reasons well known to yourself' and the termination letter gave no particulars. Such vagueness offended natural justice, so the action was wrongful and only relief remained in question.

p. 4
02

Whether the fixed allowances formed part of the grievant's salary

Holding

Allowances payable for services rendered are part of remuneration and must be restored to the grievant

Reasoning

Relying on dictionary definitions and Blackburn J.'s observation in J.B. Saunders v. The Postmaster General, the court held that 'remuneration' is a wide term meaning the quid pro quo for services, and includes allowances. As a matter of industrial law, an amenity once given cannot be withdrawn except by mutual agreement, and labour legislation must be construed liberally to maximise employee benefits. The allowances were therefore part of the grievant's salary.

p. 5
03

The appropriate remedy for the wrongful termination

Holding

Reinstatement was refused; instead normal termination with full terminal benefits and six months' salary as compensation for loss of employment was awarded

Reasoning

Because nearly five years had elapsed since the termination and relations between the parties were uncordial, reinstatement was not feasible. The court instead converted the disciplinary termination into normal termination, awarded the full terminal benefits claimed (Kshs.360,388.00) and compensation of six months' salary (Kshs.208,650.00), subject to lawful statutory deductions.

p. 5

Legal principles established

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  • The definition of salary or wages includes allowances payable to an employee for services rendered, as part of the remuneration due under the contract of employment
  • Once a certain amenity is given to employees it cannot be withdrawn except by mutual agreement of the parties
  • A suspension or termination letter must state the particulars of the offence; vague references to reasons known to the employee render the action wrongful

Court orders

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  1. 1.The termination of the grievant on disciplinary grounds be reduced to normal termination of service
  2. 2.The grievant be paid Kshs.360,388.00 being his terminal benefits
  3. 3.The grievant be paid Kshs.208,650.00 being compensation equivalent to six months' salary for loss of employment, making a total of Kshs.569,038.00 in full and final settlement of his terminal dues
  4. 4.The award amounts are subject to the usual lawful statutory deductions
Jurisdiction invoked
Section 8 of the Trade Disputes Act, Cap. 234 (reference by the Minister for Labour)

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 GAME, HUNTING & SAFARIS WORKERS’ UNION v PRIVATE SAFARIS (E.A.) LTD (Cause 66 of 2000) [2002] KEELRC 10 (KLR)", Case Analysis (2002). Cause No. 66 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2002/10/eng@2002-10-11

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