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ELRCPartially AllowedCause No. 104 of 2018

Kenya Plantation & Agricultural Workers Union v Unilever Tea (K) Limited [2021] KEELRC 1500 (KLR)

Employment and Labour Relations Court of Kenya at Kericho
27 January 2021
1,695 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 ruled Unilever unfairly dismissed a tea worker because the dismissal reasons differed from the accusations she was actually charged with.

What this practically means

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Executive summary

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The claimant union brought this dispute on behalf of its member Florence Oichoe (the grievant), a general worker in tea hand plucking employed by the respondent on 15th December 2004, contesting her victimisation, wrongful and unfair summary dismissal. The dispute arose from an altercation in the company village on 9th October 2016 between the grievant and a fellow employee, Sheila Cherono, following an assault on the grievant's son. The grievant was issued a notice to show cause on 19th October 2016 for allegedly threatening to kill Cherono, attended a disciplinary hearing on 2nd November 2016, and was dismissed by letter dated 12th November 2016 for breach of the Code of Business Principles and absence from duty without permission. The claimant sought gratuity, pro-rata leave, 12 months' compensation, bus fare, unpaid wages, overtime, notice pay, damages and costs. The court found a huge disparity between the reasons in the dismissal letter (which included absence from duty, never put to the grievant) and the allegations she was required to answer. Applying sections 43 and 45 of the Employment Act, 2007, the court held there was no valid or fair reason for the termination and that the summary dismissal was unfair. Judgment was entered for the claimant with a declaration of unfair termination, compensation of Ksh.154,500 (10 months' gross wage), gratuity of Ksh.135,960, notice pay of Ksh.31,000, costs of the suit, and interest on the gratuity from the date of termination until payment in full. Claims for separate damages and for leave, bus fare, wages and overtime were refused as settled or subsumed in compensation.

Questions the Court framed

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

  1. 1.Whether the summary dismissal of the grievant was for valid and fair reasons under sections 43 and 45 of the Employment Act, 2007
  2. 2.Whether the reasons given for termination corresponded with the allegations the grievant was called upon to answer
  3. 3.Whether the dismissal was wrongful, unfair and unjustified
  4. 4.What remedies are due to the grievant

Key legal issues

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01

Validity of the reasons for summary dismissal

Holding

The dismissal was for a reason (absence from duty without permission) never put to the grievant in the notice to show cause or disciplinary hearing; the court found no valid or fair reason and the dismissal unfair contrary to sections 43 and 45 of the Employment Act

Reasoning

Section 43 obliges the employer to prove the reasons for termination, which must be the matters the employer genuinely believed existed at the time. The show cause letter and disciplinary hearing concerned only alleged threats to kill Sheila Cherono, yet the dismissal letter cited breach of the Code of Business Principles and absence from duty without permission. The disparity meant the grievant was condemned unheard on a charge never put to her, and the court found no valid or fair reason for termination.

p. 3
02

Remedies for unfair termination

Holding

The grievant was awarded 10 months' gross wage as compensation, two months' notice pay under clause 23(c) of the CBA, and gratuity for 12 years under clause 30(a), but no separate damages for wrongful termination

Reasoning

The grievant earned Ksh.515 per day (Ksh.15,450 per month) and had served 12 years. Taking her length of service into account, 10 months' gross wage was appropriate compensation. Notice pay of two months was due under the CBA for an employee of over 5 years. Gratuity was payable because the termination was found unjustified. Dues offered in the termination letter (wages, pro-rata leave, overtime, bus fare) were already settled, and damages for wrongful termination were subsumed in compensation.

p. 3

Legal principles established

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  • An employer bears the burden of proving the reason or reasons for termination, failing which the termination is deemed unfair under section 45
  • Termination must be for reasons that exist and genuinely caused the termination, and must be valid, fair and justified both substantively and procedurally
  • A summary dismissal cannot stand on grounds different from those the employee was charged with and given an opportunity to answer

Court orders

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  1. 1.A declaration that the grievant's employment was unfairly terminated
  2. 2.Compensation awarded at Ksh.154,500 (10 months' gross wage)
  3. 3.Gratuity pay Ksh.135,960 under clause 30(a) of the CBA
  4. 4.Notice pay Ksh.31,000 under clause 23(c) of the CBA
  5. 5.Costs of the suit to the claimant
  6. 6.Interest on the gratuity at court rates from the date employment terminated until payment in full

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 over the dispute of victimisation, wrongful and unfair dismissal of the grievant Florence Oichoe

Relief refused

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Damages for unfair/wrongful dismissal

The award of compensation already adequately compensated the grievant

p. 3

Prorate leave, bus fare, unpaid wages and unpaid overtime

These dues were offered by the respondent in the termination letter and are settled

p. 3

Costs

Costs of the suit awarded to the claimant

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. 3Disposition
A declaration that the grieving’s employment was unfairly terminated;
p. 4Final orders - declaration
There is a huge disparity between the reasons given for termination of employment and the allegations made against the claimant and for which she was issued with notice to show cause and was called to a disciplinary hearing to defend herself.
p. 2Disparity between charges and reasons for dismissal
the court find no valid or fair reason leading to termination of employment.
p. 3Finding on validity of reasons
The summary dismissal of the grievant is hereby found unfair.
p. 3Finding of unfair termination

Issues in the judgment

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minor

Judgment delivered in open court at Nairobi although the cause is filed at the Employment and Labour Relations Court at Kericho

minor

Parties' roles misprinted in the cause heading - the respondent is written as 'RESSPONDENT'

minor

The notice to show cause is dated 19th October 2016 alleging an argument on 12th September 2016, while the narrative elsewhere places the quarrel on 9th October 2016

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 1500 (KLR)", Case Analysis (2021). Cause No. 104 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1500/eng@2021-01-27

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