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ELRCPartially AllowedCause No. 51 of 2019

Kenya Plantation & Agricultural Workers Union v Unilever Tea (K) Limited [2021] KEELRC 1485 (KLR)

Employment and Labour Relations Court of Kenya
27 January 2021
MMM. Mbaru
3,299 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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Unilever Tea Kenya was ordered to pay two dismissed workers compensation because their disciplinary findings lacked evidence, but reinstatement was denied due to delay.

What this practically means

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Executive summary

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The claimant union sued on behalf of two grievants, Gilbert Ngetich and Nickson Kipkirui, general workers of Unilever Tea (K) Limited summarily dismissed on 3rd December 2016 for allegedly assaulting fellow employees during a strike on 1st and 2nd August 2016. The grievants were arrested, charged before the Sotik Principal Magistrates' Court and acquitted. The union sought a declaration of unfair dismissal, reinstatement with back wages, or alternatively gratuity, twelve months' pay, notice pay, damages and a certificate of service. The respondent maintained that due process was followed substantively and procedurally, that gross misconduct justified summary dismissal under its code of business principles and section 44(4) of the Employment Act, and that an appeal internally upheld the dismissal. The court found that the grievants discharged their burden under section 47(5) by denying the allegations, shifting the burden to the respondent to justify the termination. Examining the disciplinary evidence, the court found the complainant Samuel Cheruiyot identified his attackers without implicating Gilbert Ngetich, Nelson Langat's evidence was hazy and did not directly link Kipkirui to the assault, and Lameck Onyango was not assaulted by him. The committee's findings were at variance with the evidence. Termination was therefore unfair and without valid reason. Reinstatement was refused as over three years had elapsed since termination. The court awarded each grievant three months' wages as compensation, notice pay and gratuity per the CBA, certificates of service, interest on unpaid dues after 30 days, and costs to the claimant. Claims for reinstatement, back wages and separate damages were refused.

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 unlawful, unfair and wrongful termination of employment
  2. 2.Whether the grievants should be reinstated
  3. 3.Whether the remedies sought should issue

Key legal issues

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01

Whether the summary dismissal of the grievants was for valid and fair reasons

Holding

The termination was unfair; the disciplinary findings were not supported by the evidence before the committee and there was no justifiable cause for summary dismissal

Reasoning

The complainant Samuel Cheruiyot identified his attackers and did not implicate Gilbert Ngetich. Nelson Langat's evidence was hazy and did not directly link Nickson Kipkirui to the assault, and Lameck Onyango said the grievant was not his assailant. The disciplinary committee's findings were at variance with the evidence, even misnaming the defendant. The reasons for dismissal were therefore not genuine or fair.

p. 4
02

Whether reinstatement should issue

Holding

Reinstatement was refused because more than three years had elapsed since termination and alternative remedies had been sought

Reasoning

Employment terminated on 3rd December 2016 and judgment came over three years later. Under section 49 of the Employment Act read with section 12 of the ELRC Act, reinstatement is not available where the matter is not heard and concluded within three years, particularly where alternative remedies are sought and considered.

p. 5
03

What remedies flow from the finding of unfair termination

Holding

Notice pay per the CBA, gratuity per clause 30 of the CBA, three months' compensation under section 49, and certificates of service were awarded

Reasoning

Based on the applicable CBA clauses and the grievants' service of over five years and about three to four years, the court quantified notice pay on daily wages of Ksh.491, gratuity at 22 days per completed year, and compensation at three months' wages. Certificates of service issue under section 51. Separate damages for unlawful dismissal were refused.

p. 5

Legal principles established

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  • The employee bears the burden of proving unfair termination; once a basis is laid, the burden shifts to the employer to justify the grounds for termination
  • Termination of employment must be founded on genuine, valid and fair reasons which the employer must prove
  • Reinstatement cannot issue where the claim is not heard and concluded within three years of termination

Court orders

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  1. 1.A declaration that employment was terminated unfairly
  2. 2.Gilbert Ngetich awarded compensation of Ksh.44,190, notice pay of Ksh.29,460 and gratuity of Ksh.54,010
  3. 3.Nickson Kipkirui awarded compensation of Ksh.44,190, notice pay of Ksh.22,095 and gratuity of Ksh.43,208
  4. 4.The grievants to be issued with Certificates of Service pursuant to section 51 of the Employment Act, 2007
  5. 5.The dues to be paid within 30 days from the date of judgment, after which interest shall accrue at court rates
  6. 6.The claimant awarded costs of the suit

The bench

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

MM
majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court Act, 2011, section 12; Employment Act, 2007

Relief refused

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Reinstatement of the grievants without loss of benefits and payment for the period out of employment

The remedy of reinstatement is unavailable where the matter is not heard and concluded within three years of termination

p. 5

Damages for unlawful, illegal and unfair dismissal

The Act already addresses unfair termination through compensation under section 49; the court found no basis for a separate damages award

p. 5

Costs

The claimant is awarded costs of the suit.

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.

Accordingly, judgement is hereby entered for the claimant against the respondent in the following terms
p. 5disposition
A declaration that employment was terminated unfairly
p. 5final orders - declaration
The claimant is awarded costs of the suit.
p. 5final orders - costs
The court finds the termination of employment was unfair and lacked validity and the reasons given were not genuine or fair.
p. 4unfair termination
The evidence before the disciplinary hearing was that Gilbert Ngetich did not assault any employee. Equally, Nickson Kipkirui was not found culpable.
p. 4disciplinary findings unsupported by evidence
the burden then shifted to the respondent under section 43(1) and 47(5) to prove the alleged reasons for termination of the grievants’ employment
p. 3burden of proof

Issues in the judgment

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minor

The judgment is filed at ELRC Kericho but delivered 'at Nairobi'

minor

Conflicting dates for the disciplinary hearing - the narrative says 3rd November 2016, the defence and evidence say 4th November 2016

minor

Conflicting dates for the criminal case outcome - the claim states acquittal on 10th November, 2017, the grievant's evidence says dismissal on 24th November, 2017

minor

Conflicting dates of arrest and charge - the opening narrative places arrest in August 2017 but the claim, evidence and defence place it in August 2016

minor

Conflicting employment start dates for Nickson Kipkirui - 1st November, 2013 in the narrative versus 8th October, 2012 in his testimony

minor

The disciplinary committee findings quote 'The defendant (Gilbert Kiprotich)' although the grievant is Nickson Kipkirui and Gilbert Ngetich is the other grievant - a misnaming the court itself noted as unfounded

minor

Typographical error in the reinstatement discussion - 'It is over three 93) years since'

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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 Plantation & Agricultural Workers Union v Unilever Tea (K) Limited [2021] KEELRC 1485 (KLR)", Case Analysis (2021). Cause No. 51 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1485/eng@2021-01-27

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