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ELRCDismissedCause No. 43 of 2019

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

Employment and Labour Relations Court of Kenya
27 January 2021
3,644 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~15 min to read original · ~4 min brief

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.

Questions the Court framed

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

  1. 1.Whether there was unfair termination of employment
  2. 2.Whether the reasons given are valid
  3. 3.Whether the remedies sought should be issued

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

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (dispute reported to the Minister and conciliated, Certificate of Disagreement issued)

Relief refused

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Reinstatement of the grievant without loss of benefits

Termination for good cause bars reinstatement

p. 6

Gratuity for years served in accordance with the CBA

Under the CBA gratuity is not payable upon summary dismissal

p. 6

Salary arrears as per the CBA and payment for untaken leave days

Not quantified and not supported by submissions

p. 6

Salary for 12 months / compensation and damages for unfair dismissal

Compensation and notice pay unavailable where dismissal was justified

p. 6

Costs

Each party shall bear own costs.

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.

The court finds the termination of employment by summary dismissal was justified and for reasonable cause pursuant to section 44 of the Act read together with section 41 of the Act.
p. 6substantive justification for summary dismissal
The standard of proof is on a balance of probability, not beyond reasonable doubt, and all the employer is required to prove are the reasons that it “genuinely believed to exist,” causing it to terminate the employee’s services.
p. 5standard of proof in unfair termination claims
The remedy of reinstatement is not available to an employee whose employment is terminated for a good cause.
p. 6reinstatement unavailable on justifiable dismissal
Accordingly, for the reasons set out above, the claim is hereby found without and is dismissed. Each party shall bear own costs.
p. 6final orders and costs

Issues in the judgment

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minor

Delivery stated at Nairobi though the cause is filed at the ELRC Kericho station; also the closing formality line appears incomplete with blank signature fields

minor

Outcome wording in the disposition is grammatically garbled ('found without'), though the dismissal and costs orders are clear

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.