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ELRCPartially AllowedCause No 42 of 2011

Kenya Union of Printing Publishing Paper Manufacturers and Allied Workers v Printing Industries Limited [2015] KEELRC 1022 (KLR)

Employment and Labour Relations Court of Kenya
5 June 2015
LNLinnet Ndolo
1,055 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 reduced a summary dismissal to normal termination because the employer ignored the worker's apology, awarding him over Kshs.385,000 in benefits.

What this practically means

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Executive summary

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The Kenya Union of Printing, Publishing, Paper Manufacturers and Allied Workers sued on behalf of its member, Willis Njiri Maramba, a Binding Machine Operator employed by Printing Industries Limited from 1981 until his summary dismissal in June 2006. The Respondent alleged the Grievant was hired by a former employee to bind 50 books for a rival company, admitted the breach by a letter of apology dated 8th June 2006, and was dismissed for gross misconduct under Clause 12(c) of the CBA without notice. The Respondent twice failed to appear at hearings and did not participate in the eventual hearing. The court framed three issues: lawfulness and fairness of the termination, entitlement to remedies, and the Respondent's counterclaim. Applying the repealed Employment Act (Cap 226) because the Employment Act, 2007 was not yet operational in 2006, and following Jeremiah Ojwang Ojak v Central Bank of Kenya on non-retrospectivity, the court held that although the misconduct justified dismissal, the Respondent's failure to consider the Grievant's apology as a mitigating factor warranted converting the summary dismissal into a normal termination. The court awarded three months' salary in lieu of notice (Kshs.79,626.00), gratuity at 15 days' pay for 24 completed years under Clause 12(b) of the CBA (Kshs.318,504.00) and pro rata leave for 2006 (Kshs.7,741.00), totalling Kshs.405,871.00, less the Kshs.20,000.00 advance, yielding Kshs.385,871.00 with interest at court rates from the date of the award. Claims for compensation for unfair termination, salary and house allowance arrears, leave travelling allowance and unremitted Cooperative deductions were dismissed as unproved or without legal basis, as was the Respondent's counterclaim for company property. The Respondent was directed to issue a certificate of service and to pay the costs of the case.

Questions the Court framed

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

  1. 1.Whether the termination of the Grievant's employment was lawful and fair
  2. 2.Whether the Grievant is entitled to the remedies sought
  3. 3.Whether the Respondent has made out a proper counterclaim against the Grievant

Key legal issues

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01

Whether the termination of the Grievant's employment was lawful and fair

Holding

Although the Respondent had grounds for dismissal (Grievant's gross misconduct working for a rival company), the failure to consider the Grievant's apology as a mitigating factor rendered the summary dismissal unfair; the court converted it to a normal termination with notice pay, gratuity and pro rata leave.

Reasoning

The court first identified the applicable law: the Employment Act, 2007 was not in force at the June 2006 termination, following Nduma J's holding in Jeremiah Ojwang Ojak v Central Bank of Kenya on non-retrospectivity, so the repealed Employment Act (Cap 226) applied. Under the repealed law, an employer could terminate on notice, but the Grievant was summarily dismissed without notice. Examining the circumstances, the court found the Respondent ignored the Grievant's letter of apology as a mitigating factor, warranting conversion of the dismissal to normal termination with contractual and CBA benefits, less the Kshs.20,000.00 advance already paid.

p. 3
02

Whether the Grievant is entitled to the remedies sought

Holding

Only three months' notice pay, gratuity for 24 years' service and pro rata leave for 2006 were awarded; compensation for unfair termination, arrears, leave travelling allowance and unremitted Cooperative deductions were dismissed as unproved or without legal basis.

Reasoning

The court assessed the remedies under the applicable repealed law and the CBA. Notice pay of three months was grounded in the Grievant's terms and conditions of employment; gratuity at 15 days' pay per year for 24 completed years was provided under Clause 12(b) of the CBA; pro rata leave was computed for 2006. The 12 months' compensation claim had no legal basis under the repealed regime, and the monetary claims for arrears, leave travelling allowance and Cooperative deductions were unsupported by evidence.

p. 3
03

Whether the Respondent has made out a proper counterclaim

Holding

The counterclaim failed; the Kshs.20,000.00 advance was set off against the award and the claim for return of company property was not proved.

Reasoning

The Respondent sought return of company property and repayment of Kshs.20,000.00 advanced to the Grievant. The court found the property claim unproved and treated the advance as already satisfied by deducting it from the award, leaving no counterclaim to sustain. The counterclaim was accordingly dismissed.

p. 3

Legal principles established

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  • The Employment Act, 2007 does not apply retrospectively to employment contracts terminated before its operationalisation; the repealed Employment Act (Cap 226) governs such terminations.
  • An employer must take into account mitigating factors, such as an employee's apology, when deciding on summary dismissal; failure to do so may lead the court to convert a summary dismissal into a normal termination with notice and attendant benefits.

Court orders

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  1. 1.Dismissal converted to normal termination with benefits: three months' salary in lieu of notice (Kshs.79,626.00), gratuity at 15 days' pay for 24 completed years of service (Kshs.318,504.00), and pro rata leave for 2006 (Kshs.7,741.00)
  2. 2.Award of Kshs.385,871.00 in favour of the Grievant, after deducting the Kshs.20,000.00 advance, with interest at court rates from the date of the award until payment in full
  3. 3.Respondent directed to issue the Grievant with a certificate of service
  4. 4.Claim for compensation for unfair termination, salary and house allowance arrears, leave travelling allowance and unremitted Cooperative deductions dismissed
  5. 5.Respondent's counterclaim dismissed
  6. 6.Respondent to meet the costs of the case

The bench

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

LN
majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over a trade dispute reported to the Minister for Labour (Employment and Labour Relations Court Act); the matter proceeded after conciliation failed

Relief refused

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Reinstatement of the Grievant without loss of benefits

Court instead converted the dismissal to normal termination with notice pay, gratuity and pro rata leave; reinstatement not granted

12 months' salary in compensation for unfair termination

Claim had no legal basis, termination being governed by the repealed Employment Act (Cap 226) and dismissal converted to normal termination

p. 3

Salary arrears, house allowance arrears, leave travelling allowance and unremitted Cooperative deductions

Not proved

p. 3

Respondent's counterclaim for company property and Kshs.20,000.00

The Kshs.20,000.00 was discounted from the award and the claim for property was not proved

p. 3

Costs

The Respondent shall meet the costs of this case.

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.

there is no provision for retrospective application of the Employment Act, 2007 to employment contracts terminated before its operationalisation
p. 3Non-retrospectivity of the Employment Act, 2007
I have however examined the circumstances surrounding the Claimant's dismissal and have formed the opinion that in reaching its decision, the Respondent failed to take into account the Claimant's apology as a mitigating factor. I therefore convert the dismissal to normal termination
p. 3Mitigation in summary dismissal
Finally I make an award in favour of the Grievant in the sum of Kshs.385,871.00 which shall attract interest at court rates from the date of the award until payment in full. I further direct the Respondent to issue the Grievant with a certificate of service.
p. 3Final orders and award
The Respondent shall meet the costs of this case.
p. 3Costs

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Kenya Union of Printing Publishing Paper Manufacturers and Allied Workers v Printing Industries Limited [2015] KEELRC 1022 (KLR)", Case Analysis (2015). Cause No 42 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1022/eng@2015-06-05

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