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ELRCPartially Allowed· [2015] KEELRC 651 (KLR)

Kenya Plantation & Agricultural Workers Union v Harvest Limited [2015] KEELRC 651 (KLR)

Industrial Court of Kenya
16 July 2015
NMNzioki wa Makau
825 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 two flower farm workers were unfairly fired because their employer never gave them a hearing before dismissal.

What this practically means

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Executive summary

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The Claimant union sued on behalf of two grievants, Agnes Atsiaya and Margaret Mbula, both bunchers at the Respondent's flower farm in Athi River, who were terminated on 11th March 2011 on grounds of insubordination. The Claimant pleaded that the insubordination was undocumented, no warning letters were issued, and the terminations contravened Section 43 of the Employment Act, seeking one year's compensation, gratuity and costs. The Respondent defended the dismissals as justified, contending the grievants refused to sign a disciplinary form. The matter was disposed of by written submissions under Rule 21 of the Industrial Court (Procedure) Rules 2010; the Claimant filed submissions while the Respondent filed none. The Claimant relied on Section 41 of the Employment Act, arguing the Respondent never explained the reasons for termination or allowed the grievants a fellow employee or union representative, citing Shankar Saklani v DHL Forwarding, Abraham Gumba v KEMSA and Mary Chemweno Kiptui v Kenya Pipeline. The Court held the Respondent was duty bound to lay the accusations and hear the grievants' response; failure to do so rendered the dismissals unlawful and unfair, denying the grievants the right to be heard. Applying Section 49, the Court awarded each grievant compensation capped at six months' salary (Kshs. 67,146 for Agnes Atsiaya and Kshs. 55,410 for Margaret Mbula), subject to statutory deductions, ordered Certificates of Service, and awarded costs of the suit to the Claimant. The broader claim for one year's compensation and gratuity was not granted in full.

Key legal issues

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01

Procedural fairness under Section 41 of the Employment Act

Holding

The dismissal was unlawful and unfair because the employer did not explain the accusations to the grievants or hear their responses as required by Section 41.

Reasoning

Section 41(1) requires an employer, before terminating employment on grounds of misconduct, to explain the reasons in a language the employee understands and allow the employee to have a fellow employee or shop floor union representative present. Section 41(2) requires the employer to hear and consider representations. The Claimant submitted, uncontradicted by any Respondent submissions, that this was not done. Refusal to sign a disciplinary form did not substitute for a hearing. The failure denied the grievants natural justice, rendering the terminations wrongful and unfair.

p. 2
02

Remedy for unfair termination under Section 49

Holding

Compensation was awarded capped at six months' salary for each grievant, subject to statutory deductions.

Reasoning

Having found the dismissal unlawful, the Court exercised its powers under Section 49 of the Employment Act to award compensation. Although the Claimant sought one year's compensation plus gratuity, the Court capped compensation at six months for each grievant, computed from their salaries (Kshs. 67,146 for Agnes Atsiaya and Kshs. 55,410 for Margaret Mbula), and also ordered issuance of Certificates of Service.

p. 2

Legal principles established

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  • An employer must, before terminating employment for misconduct, explain the reasons to the employee and hear their representations, failing which the dismissal is unlawful and unfair.

Court orders

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  1. 1.Compensation for Agnes Atsiaya for unlawful termination capped at 6 months, Kshs. 67,146
  2. 2.Compensation for Margaret Mbula for unlawful termination capped at 6 months, Kshs. 55,410
  3. 3.The grievants to each receive a Certificate of Service
  4. 4.Respondent to pay costs of the suit
  5. 5.The compensation sums are subject to statutory deductions under Section 49 of the Employment Act

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 49
  • Employment ActSection 42(1)
  • Employment ActSection 44(3) and (4)
  • Industrial Court (Procedure) Rules 2010Rule 21

Cases cited (3)

  • Shankar Saklani v DHL Forwarding (K) Limited
    [2012] eKLR
  • Abraham Gumba v Kenya Medical Supplies Authority
    [2014] eKLR
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
Jurisdiction invoked
Employment Act, Sections 41, 43 and 49; Industrial Court (Procedure) Rules 2010, Rule 21

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 Plantation & Agricultural Workers Union v Harvest Limited [2015] KEELRC 651 (KLR)", Case Analysis (2015). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/651/eng@2015-07-16

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