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ELRCPartially AllowedCause 1658 of 2011

KENYA UNION OF COMMERCIAL FOOD AND ALLIED WORKERS V RUCHU CHARAGE FARMERS CO-OPERATIVE SOCIETY LIMITED [2012] KEELRC 83 (KLR)

Industrial Court of Kenya
18 December 2012
HWHellen Wasilwa
1,050 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 a co-operative's dismissal of its watchman unfair because he was never given a hearing before being fired.

What this practically means

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Executive summary

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The Kenya Union of Commercial Food and Allied Workers, on behalf of its member Mwangi Mwaniki, claimed that the Ruchu Charage Farmers Co-operative Society Limited unlawfully terminated his employment. The claimant, a watchman employed in January 1999, was suspended on 17th February 2009 on allegations of sneaking out of duty on 14th January 2009, during which coffee was stolen. He was expected before a disciplinary committee on 12th February 2009, but the respondent terminated his services on 16th February 2009, backdated to 12th February 2009. The claimant argued the suspension preceded any show cause letter, gave him no right to respond, and condemned him unheard. The respondent maintained he sneaked out of duty, failed to answer management summons, and that dues per the CBA had been forwarded to the Labour Officer in March 2009. The court framed two issues: whether the dismissal was justified and, if not, the remedies due. Holding that the claimant was never given an opportunity to be heard, the court invoked Article 50(1) of the Constitution, ILO Recommendation 119 and Section 41(1) of the Employment Act to find the termination unfair and wrongful, and converted it into a normal termination. It awarded one month's salary in lieu of notice, twelve months' salary as damages for unfair dismissal, eleven years' service pay at fifteen days per year, a certificate of service, and costs against the respondent. Judgment was delivered at Nairobi on 18th December 2012 by Hellen Wasilwa, Judge.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether dismissal of claimant by respondent is justified.
  2. 2.If not what remedies claimant is entitled to.

Key legal issues

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01

Whether the dismissal of the claimant was justified

Holding

The dismissal was unfair and wrongful because the claimant was condemned unheard.

Reasoning

Although the claimant's absence may have caused loss to the respondent, he was suspended and terminated without being given an opportunity to be heard. The court applied Article 50(1) of the Constitution, ILO Recommendation 119 and Section 41(1) of the Employment Act, holding that the failure to give a hearing rendered the termination unfair regardless of the merits of the misconduct allegation.

p. 2
02

What remedies the claimant is entitled to

Holding

The court converted the wrongful termination into a normal termination and awarded notice pay, 12 months' salary for unfair dismissal, service pay, a certificate of service and costs.

Reasoning

The court treated the unfair termination as a normal termination and quantified relief: one month's salary in lieu of notice, twelve months' salary as damages for unfair dismissal (based on the monthly wage of Ksh.5,840), and service pay of 15 days' salary per year for 11 years of service, plus a certificate of service and costs.

p. 2

Legal principles established

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  • An employee must be heard before termination for misconduct; termination without affording a hearing is unfair and wrongful.
  • Section 41(1) of the Employment Act obliges an employer to explain the reason for contemplated termination and to allow the employee to have a representative present.

Court orders

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  1. 1.Payment of 1 month's salary in lieu of notice (Ksh.5,840/=)
  2. 2.Payment of 12 months' salary as damages for unfair dismissal (Ksh.70,080/=)
  3. 3.Payment of 11 years' service pay computed as 15 days' salary for each year worked (Ksh.32,120)
  4. 4.Issuance of a certificate of service to the claimant
  5. 5.Respondent to pay costs of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

HW
majority

Wrote the judgment

Jurisdiction invoked
Industrial Court jurisdiction over employment disputes under the Industrial Court Act, invoked by filing a memorandum of claim (Cause 1658 of 2011)

Relief refused

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Further dues beyond those already paid by the respondent under the CBA

The court noted some dues had already been paid and awarded only the enumerated amounts in addition.

p. 2

Costs

Respondent will pay costs of this suit.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is a cardinal principle of law that a man should not be condemned unheard.
p. 2Right to be heard before termination
Given that the claimant was condemned unheard, I find that he was unfairly and wrongfully terminated. I convert the wrongful termination into a normal one.
p. 2Finding on unfair termination
In addition the claimant should be issued with a certificate of service.
p. 3Final orders - certificate of service
Respondent will pay costs of this suit.
p. 3Final orders - costs

Issues in the judgment

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minor

Arithmetic in the service pay award is internally inconsistent: the figure 'Ksh.32,120' does not accord with ½ x 5840 x 11 years (Ksh.32,120) as shown, but the label reads '11 years service pay = 15 days salary for each year worked', which would not equal 32,120; the grand total of Ksh.108,040 also does not tally with the listed figures (5,840 + 70,080 + 32,120 = 108,040, which does tally).

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 FOOD AND ALLIED WORKERS V RUCHU CHARAGE FARMERS CO-OPERATIVE SOCIETY LIMITED [2012] KEELRC 83 (KLR)", Case Analysis (2012). Cause 1658 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/83/eng@2012-12-18

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