Kenya Union of Commerial Food and Allied Workers v Linco Stores Limited (Employment and Labour Relations Cause E021 of 2023) [2024] KEELRC 2762 (KLR)

Section 22 of the ELRC Act permits representation by an office bearer or official of a party's trade union without conditions on when membership began. There was unrebutted evidence the grievant was a member of the Claimant union at the time of suit, so the Claimant could sue on his behalf, consistent with the Court of Appeal decision in Modern Soap Factory v Kenya Shoe and Leather Workers Union.

Sections 45, 41 and 43 require the employer to prove a valid and fair reason and fair procedure. The respondent alleged misappropriation of customer payments but produced no documentary evidence substantiating the misconduct and no minutes or other proof of a hearing. The grievant denied wrongdoing. The burden of proof resting on the employer was not discharged, so the summary dismissal was unfair.

Section 49(1) compensation was warranted given 17 years of service, employer's failure to prove misconduct, and skewed procedure. Leave of 63 days less 26 utilised left 37 days payable on the minimum wage of Kshs.21,418.50. Underpayment of Kshs.9,418.50 for 36 months was proved by bank statements. House allowance assessment exceeded the pleaded sum, but parties are bound by pleadings, so judgment entered at the pleaded total.