Kenya Union of Commercial, Food and Allied Workers v Victoria Juice Company Limited (Cause 618 of 2019) [2023] KEELRC 1019 (KLR)
The bottom line
#A Kenyan court ruled that firing a worker for being genuinely sick, without any hearing or letter, was unfair and awarded him six years' worth of dues.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the grievant's employment was unfairly terminated following his absence on sick leave
- 2.Whether the grievant was denied fair procedure (not issued with appointment, disciplinary or termination letters; condemned unheard)
- 3.Whether the grievant was entitled to house allowance, leave pay and outstanding salary
Key legal issues
#Whether termination was unfair
Termination was unfair; the grievant was denied access to the workplace after sick leave, without disciplinary or termination letters and without a hearing
The grievant produced medical notes and a sick sheet showing he was genuinely unwell on April 10, 2018. When he returned to work he was refused entry on allegations of absconding. He received no disciplinary or termination letter and was condemned unheard, contrary to the Employment Act and natural justice. The employer filed no defence or response, so the claimant's evidence stood uncontroverted.
Quantum of compensation for unfair termination
Seven months' salary awarded as adequate compensation for an employee of approximately six years' service terminated while unwell
Although the union claimed twelve months' salary, the court, weighing the roughly six years of service and the unreasonableness of terminating an employee for illness, held that seven months' salary would adequately compensate the grievant, to be computed at the salary in effect at termination.
Entitlement to house allowance, leave pay and salary arrears
House allowance for 72 months (Kshs 197,640), leave pay for 21 days (Kshs 14,734) and ten days' salary (Kshs 7,016) awarded as prayed
The claim remained undefended; the respondent neither entered appearance nor filed a response. In the absence of any contrary evidence, the court accepted the claimant's pleaded and proved figures for unpaid house allowance over the service period, accumulated leave and salary arrears, awarding them as prayed.
Legal principles established
#- Under Section 47(5) of the Employment Act, the burden of proving unfair termination lies on the employee while the burden of proving the reason for termination lies on the employer
- In an undefended claim where the employer files no defence and adduces no evidence, the court will believe the uncontroverted evidence of the claimant
- Terminating an employee because he fell ill and could not report to work is unreasonable and unfair
Court orders
#- 1.One month's salary in lieu of notice of termination (Kshs 21,049)
- 2.Salary of ten days (Kshs 7,016)
- 3.House allowance for 72 months (Kshs 197,640)
- 4.Leave pay for 21 days (Kshs 14,734)
- 5.Seven months' salary as compensation for unfair termination (Kshs 147,343)
- 6.Costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (undefended claim for unfair termination and employment benefits)
Relief refused
#12 months' salary as compensation for unfair termination (claimed)
Court found seven months' salary adequate compensation given six years of service and the circumstances of termination
Costs
Costs of the suit awarded to the Claimant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is the Claimants case that the Respondent failed to issue the grievant with letter of appointment contrary to the Law.
That the grievant was condemned unheard contrary to the provisions of Employment Act, 2007, Constitution of Kenya and Rules of Natural Justice.
This was unreasonable on the part of the Respondent as anyone can fall sick and be unable to report to work.
In the circumstances an award of seven months’ salary would adequately compensate the Claimant.
The Court therefore awards the Claimant as follows:
f. Costs of the suit. It is so ordered.
Issues in the judgment
#Typographical errors in the judgment: the return-to-work date is given as '1April 1, 2018' though the memorandum of claim states April 11, 2018
Costs appear both as item (f) in the list of monetary awards and as a separate costs order; also the claim heading merges union claim with the individual grievant's reliefs
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial, Food and Allied Workers v Victoria Juice Company Limited (Cause 618 of 2019) [2023] KEELRC 1019 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1019/eng@2023-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.