Kenya Building, Construction, Timber, Furniture & Allied Industries Employees’ Union v Premier Construction Ltd (Cause 72 of 2001) [2003] KEIC 29 (KLR)
The bottom line
#Kenya's Industrial Court ruled an employee cannot be fired verbally for absenteeism without a hearing and awarded him pay and compensation.
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 Union had locus standi to raise the dispute and represent the grievant
- 2.Whether the verbal dismissal of the grievant for alleged absenteeism was wrongful, unfair and unjustified
- 3.What terminal benefits and compensation, if any, the grievant was entitled to
Key legal issues
#Whether the Union had locus standi to raise the dispute and represent the grievant
The objection failed; the Union, as a registered union whose status was not denied, had capacity to raise the dispute and represent the grievant.
The Company argued the Union was a stranger with no relationship with the Company and that the grievant was not a member. The Court held that the Union's status as a registered union was unchallenged, so its representative capacity could not be questioned at that stage; the objection did not defeat the dispute.
Whether the verbal dismissal for alleged absenteeism was wrongful and unfair
The dismissal was arbitrary, capricious, mala fide and bad in law because the permanent employee was dismissed orally, without a written order and without any inquiry or hearing.
The grievant was a permanent employee of 3 years and 3 months with a clean record. Absence without leave is misconduct under Section 17(a) of the Employment Act requiring an inquiry. No inquiry was held and no opportunity to explain was given, violating audi alteram partem, which extends beyond courts to all proceedings affecting rights.
What remedies the grievant was entitled to
The grievant was awarded two months' notice pay, gratuity under Rule 19(1)(c) and (d) of the Regulation of Wages (Building and Construction Industry) Order, 1994, and 9 months' salary as compensation; leave pay was refused.
Given nearly 9 years had elapsed, reinstatement was not granted. Under the applicable Wages Order, an employee with over three years' continuous service is entitled to two months' notice or pay in lieu and gratuity at ten days' salary per completed year. Compensation being discretionary, 9 months was awarded.
Legal principles established
#- A permanent employee's dismissal requires an order in writing and no dismissal to his prejudice may be passed without a hearing; the audi alteram partem rule applies to all proceedings affecting a person's rights, not only court proceedings
- Absence without leave is misconduct under Section 17(a) of the Employment Act for which an inquiry is necessary before dismissal
- A registered union's representative capacity to raise a trade dispute on behalf of a grievant cannot be questioned
Court orders
#- 1.Payment of 2 months' pay in lieu of notice of Kshs.7,800/= (Kshs.3,900 x 2)
- 2.Payment of gratuity of Kshs.4,500/= (Kshs.3,900 x 10 days x 3 years/26 days)
- 3.Payment of 9 months' salary as compensation for loss of employment, Kshs.35,100/= (Kshs.3,900 x 9)
- 4.Total award of Kshs.47,400/= to the grievant as terminal benefits
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Section 8 of the Trade Disputes Act, Cap. 234, Laws of Kenya (reference by the Minister for Labour)
Relief refused
#Reinstatement to employment without loss of salary and benefits
Considering the lapse of almost 9 years since the dismissal, the Court awarded terminal benefits and compensation instead of reinstatement
Accrued leave pay for 2 years (Kshs.7,800/=)
The grievant went on leave at the material time and was paid for it
12 months' salary as compensation
Compensation is discretionary; the Court awarded 9 months instead
Costs
No costs order is recorded in the award
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.
The rule of audi alteram partem (no one should be condemned unheard) is so firmly entrenched in our legal jurisprudence that no liberties can be taken away with impunity.
That, by itself, is enough to quash the impugned verbal or oral order of dismissal of the grievant as the same was mala fide and bad in law.
The allegation of absence without leave or permission against the grievant is a misconduct under Section 17 (a) of the Employment Act, Cap.226, Laws of Kenya, for which an inquiry is necessary.
Accordingly, I AWARD and ORDER that the grievant be paid the following terminal benefits:(i) 2 months' pay in lieu of notice: Kshs.3,900/= x 2. = Kshs.7,800/=.
Issues in the judgment
#The coram lists the judge as 'CP CHEMUTTUT, J' but the signature block reads 'CHARLES P. CHEMMUTTUT, JUDGE', a variation in the rendering of the same name
The award states the grievant was dismissed 'on or about 9th August, 1994' for absconding 1st-8th August 1994, while the Minister's report states his services were terminated on 15th September 1994 after one month's salary in lieu of notice was deposited
The Company's counsel is recorded as 'A.M. Khamala, Advocate, of Yano & Co., Advocates' but the Union's advocates at the mention are named 'D.G. Mucheru and L.W. Kariuki', while the hearing records only 'J.M. Maina' for the Union; no costs order appears despite both sides seeking their respective outcomes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Building, Construction, Timber, Furniture & Allied Industries Employees’ Union v Premier Construction Ltd (Cause 72 of 2001) [2003] KEIC 29 (KLR)", Case Analysis (2003). Cause 72 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2003/29/eng@2003-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.