Kenya Shipping Clearing & Warehouses Workers Union v Maya Limited (Employment and Labour Relations Cause 898 of 2018) [2024] KEELRC 2773 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the claim for reinstatement was overtaken by events
Yes. The grievant was dismissed on 25th May 2018, more than three years before the claim, so reinstatement is statutorily barred under Section 12(3) of the ELRC Act.
Section 12(3)(vii) of the Employment and Labour Relations Court Act permits reinstatement only within three years of dismissal. The grievant was dismissed on 25th May 2018 and judgment was delivered on 31st October 2024, well beyond the three-year window. Reinstatement is also discretionary and subject to exceptional circumstances under section 49(4) of the Employment Act. The prayer for reinstatement and consequent salary adjustment therefore failed.
Whether the dismissal was substantively justified
Yes. The grievant dishonestly handled the respondent's assets (strapping roll metal) without documentation, giving the respondent a valid reason for dismissal under Section 44 of the Employment Act.
The grievant took strapping roll metal allegedly for Morgan Cargo on a verbal request, produced no documents supporting the order, and Morgan Cargo did not confirm receipt. The court found his conduct lacked transparency and that he failed at the disciplinary hearing to prove how he gave out goods on a mere verbal request. Dishonest handling of the respondent's assets constituted gross misconduct warranting dismissal.
Whether the dismissal was procedurally fair
Yes. The respondent followed due process: the grievant received a show cause letter, responded, attended a disciplinary hearing and was represented by a representative of his choice.
The court found the respondent followed due process and gave valid reasons. The grievant participated in the disciplinary process as shown by correspondence and was informed he could have a representative of his choice, one Joab Asamba. The termination was therefore lawful and procedural. However, the respondent failed to prove payment of terminal dues despite its record-keeping obligations under Sections 10 and 74 of the Employment Act.
Entitlement to terminal dues
The grievant is entitled to days worked, accrued leave and uncompensated overtime up to 25th May 2018, with interest, if not already paid.
Although the dismissal was lawful, the respondent did not avail documentation proving it paid the grievant his terminal dues. As the employer is mandated to keep such records under Sections 10 and 74 of the Employment Act, the respondent was ordered to give accounts and settle days worked, leave earned and uncompensated overtime, plus interest at 12% per annum from 25th May 2018 until full payment.
Legal principles established
#- Reinstatement may only be ordered within three years of dismissal under Section 12(3) of the Employment and Labour Relations Court Act; claims for reinstatement outside that window are overtaken by events
- For a termination to be fair, there must be both substantive justification and procedural fairness
- The employer is mandated to keep employment records including proof of payment of terminal dues under Sections 10 and 74 of the Employment Act; in default, terminal benefits are payable
Court orders
#- 1.No orders for reinstatement of the claimant/grievant to his former employment
- 2.The respondent to pay the grievant his entitlements if not already paid: days worked up to and including 25th May 2018; leave days earned up to 25th May 2018; overtime earned and not compensated up to 25th May 2018
- 3.The respondent to give accounts and settle the above reliefs if not already paid, plus interest from 25th May 2018 at 12% per annum until full payment
- 4.Mention on 3rd December 2024 to confirm settlement and for the claimant to secure his certificate of service by that date
- 5.Each party to meet respective costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court Act, Section 12 (including s.12(3)(vii) on reinstatement within three years)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Shipping Clearing & Warehouses Workers Union v Maya Limited (Employment and Labour Relations Cause 898 of 2018) [2024] KEELRC 2773 (KLR)", Case Analysis (2024). Not stated in judgment (Memorandum of Claim dated 7th June 2018, filed 8th June 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2773/eng@2024-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.