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ELRCDismissedCause No. 43 of 2019· [2021] KEELRC 1479 (KLR)

Kenya Plantation & Agricultural Workers Union v Unilever Tea (K) Limited [2021] KEELRC 1479 (KLR)

Employment and Labour Relations Court of Kenya
27 January 2021
MMM. Mbaru
3,644 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 upheld Unilever Tea's dismissal of an employee over unremitted rent money, confirming employers only need reasonable grounds to believe misconduct occurred.

What this practically means

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Executive summary

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The claimant union, under a recognition agreement and collective agreements with the respondent, challenged the summary dismissal of its grievant, Naftali Sagero Ombei, a clerk employed from 1990 and dismissed on 24th April 2017 after allegations that between 2014 and 2015 he received rent money from a tenant and failed to transmit it to the respondent. The grievant denied the allegations, stating his role was only to document payments, and noted the alleged figure varied from Ksh.103,700 in the notice to show cause to Ksh.42,700 in the dismissal letter, with no audit report supporting either figure. The respondent maintained procedural and substantive fairness, citing disciplinary proceedings, an appeal, and conciliation ending in a Certificate of Disagreement. The court framed three issues: unfairness of termination, validity of the reasons, and remedies. It held procedural fairness was met - notice, reply, and a hearing attended with a shop steward - satisfying sections 41 and 44 of the Employment Act. On substance, applying the balance-of-probability standard from Kenya Revenue Authority v Reuwel Waithaka Gitahi, the court found the employer genuinely believed the grievant received and failed to remit tenant monies, with evidence including the tenant's testimony and the grievant's partial repayment of Ksh.39,000. The dismissal was therefore justified under section 44 read with section 41. All remedies - reinstatement, gratuity, compensation, notice pay, salary arrears and leave days - were refused, the latter two being unquantified. The claim was dismissed with each party bearing own costs. Judgment delivered on 27th January 2021 by M. Mbaru, Judge.

Key legal issues

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01

Procedural fairness of the dismissal

Holding

Procedural fairness was accorded - notice to show cause, reply, and disciplinary hearing attended with a shop steward, as required by sections 41 and 44 of the Employment Act.

Reasoning

The grievant received a notice to show cause dated 3rd March 2017, replied on 6th March 2017, and was invited to and attended a disciplinary hearing on 9th March 2017 with a shop steward. Minutes were filed evidencing the hearing. An appeal was also heard. This satisfied the requirements of section 41 of the Employment Act, 2007 for notice and hearing before summary dismissal.

p. 3
02

Substantive justification for the dismissal

Holding

Despite conflicting figures (Ksh.103,700 varying to Ksh.42,700) and the absence of an audit report, the employer genuinely believed the grievant received tenant rent money and failed to remit it, constituting gross misconduct under section 44.

Reasoning

Under section 43 the employer must prove reasons it genuinely believed to exist. Evidence before the disciplinary committee, including the tenant Mark Mairura's testimony and the grievant's partial repayment of Ksh.39,000, showed money transactions between the grievant and a tenant and failure to remit rent. Though the amounts varied and no audit was conducted, the employer established reasonable grounds to believe gross misconduct occurred, justifying summary dismissal.

p. 6
03

Remedies

Holding

All remedies sought - reinstatement, gratuity, compensation, notice pay, salary arrears and leave days - were refused.

Reasoning

Reinstatement is unavailable for dismissal for good cause. The CBA excludes gratuity upon summary dismissal, and compensation and notice pay are equally unavailable. The claims for salary arrears and pending leave days were not quantified and were unsupported by submissions, so the entire claim was dismissed with each party bearing own costs.

p. 6

Legal principles established

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  • The standard of proof in employment termination cases is on a balance of probability; the employer need only prove reasons it genuinely believed to exist.
  • Dishonesty justifying dismissal is assessed contextually - whether it caused a breakdown of the employment relationship.

Court orders

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  1. 1.The claim is dismissed
  2. 2.Each party shall bear own costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (dispute reported to the Minister and conciliated, Certificate of Disagreement issued)

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 Unilever Tea (K) Limited [2021] KEELRC 1479 (KLR)", Case Analysis (2021). Cause No. 43 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1479/eng@2021-01-27

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