Kenya Union of Commercial, Food and Allied Workers v Kapa Oil Refineries Limited [2016] KEELRC 167 (KLR)
The bottom line
#A Kenyan court ruled two bakery workers were unfairly dismissed for missing work due to illness, because their employer never gave them a hearing before firing them.
What this practically means
#Executive summary
#Key legal issues
#Whether the grievants' absence from work was justified and whether the CBA procedure was followed
The absences were medically justified and the dismissals were wrongful and unfair because no valid reason existed and no fair procedure under section 41 of the Employment Act was followed.
The 1st grievant produced doctors' off-duty authorisations for his absence from 2nd July 2010, and the 2nd grievant produced a letter from Becca medical clinic showing his child was ill with malaria and pneumonia. Neither was served with a letter to show cause or given an opportunity to appear before a disciplinary committee with a union representative as required by section 41 of the Employment Act, 2007. The employer cannot claim the medical documents were never submitted when it failed to institute a proper disciplinary process for that purpose. The dismissals therefore violated section 45(1)(b) and (2) of the Employment Act.
Whether the grievants are entitled to the reliefs sought
Both grievants were entitled to compensation under section 49 of the Employment Act, notice pay and gratuity under the CBA, and salary arrears for days worked.
In assessing compensation the court considered aggravating factors under section 49(4): long service with a clean record, victimisation for falling sick, non-contribution to the dismissal, and non-payment of terminal benefits including salary for days worked. The 1st grievant was awarded five months' salary (Kshs.53,250), two months' notice pay (Kshs.21,300), gratuity of one month's salary per completed year (Kshs.53,250) and fifteen days' salary arrears (Kshs.5,325), totalling Kshs.133,125. The 2nd grievant was awarded ten months' salary (Kshs.101,000), three months' notice pay (Kshs.30,300), gratuity (Kshs.101,000) and salary arrears (Kshs.5,826.92), totalling Kshs.238,126.90.
Effect of the death of the 2nd grievant, Thathi Mwonga, during the pendency of the suit
The suit proceeded notwithstanding the death of the 2nd grievant because the claimant is the Union and not the grievants, and an award was nonetheless entered in favour of the deceased grievant.
The 2nd grievant died before he could testify and no substitution was effected, a point the respondent raised. The court reasoned that since the suit is prosecuted by the Union on behalf of the grievants, the death of one grievant did not abate the claim. The court proceeded to assess and award reliefs in favour of the deceased grievant on the basis of the documentation and the union's claim, without addressing the evidentiary consequences of his inability to testify.
Legal principles established
#- Before summary dismissal on grounds of absenteeism, an employer must afford the employee an opportunity under section 41 of the Employment Act to be heard and to tender documents justifying the absence; failure to institute a proper disciplinary process cannot be cured by blaming the employee for not producing documents.
- A dismissal is wrongful and unfair both where there is no valid reason and where a fair procedure is not followed.
Court orders
#- 1.Judgment entered in favour of Julius Kasyoki in the sum of Kshs.133,125
- 2.Judgment entered in favour of Thathi Mwonga in the sum of Kshs.238,126.90
- 3.The awards to be paid with interest from date of filing suit till payment in full
- 4.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 45 and 49 applied) over claims of wrongful and unfair termination of employment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial, Food and Allied Workers v Kapa Oil Refineries Limited [2016] KEELRC 167 (KLR)", Case Analysis (2016). Memorandum of claim dated 13th September 2011, filed 14th October 2011, as amended on 14th December 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/167/eng@2016-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.