[2022] KEELRC 4005 (KLR)
The court found that the respondent failed to comply with statutory requirements for fair termination, specifically by not issuing a written notice or conducting an oral hearing before dismissing the grievant. The evidence did not show that the grievant was given an opportunity to respond to the allegations of...
Source-derived case information.
- Citation
- [2022] KEELRC 4005 (KLR)
- Parties
- Applicant: Kenya Engineering Workers Union; Respondent: Farm Engineering Industries Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 47 of 2019
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim partly allowed. Dismissal declared unfair. Compensation and pay in lieu of notice awarded. Other claims declined.
- Judges
- S Radido
- Legal Topics
- Unfair Termination, Summary Dismissal, Procedural Fairness, Compensation for Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Engineering Workers Union
Applicant
Farm Engineering Industries Ltd
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the summary dismissal of Mr Evans Nyakundi was unfair and unlawful.
- 2 Whether the respondent complied with statutory requirements for notice and hearing prior to dismissal.
- 3 Whether the claimant is entitled to compensation, pay in lieu of notice, service gratuity, accrued leave, leave travelling allowance, earned salary, and a certificate of service.
Ratio Decidendi
The court found that the respondent failed to comply with statutory requirements for fair termination, specifically by not issuing a written notice or conducting an oral hearing before dismissing the grievant. The evidence did not show that the grievant was given an opportunity to respond to the allegations of theft. As a result, the summary dismissal was deemed unfair. The court awarded compensation equivalent to six months' gross salary and one month's salary in lieu of notice, but declined claims for service gratuity, accrued leave, leave travelling allowance, and earned salary due to lack of evidential foundation. The respondent was also ordered to issue a certificate of service to...
Court Disposition
Claim partly allowed. Dismissal declared unfair. Compensation and pay in lieu of notice awarded. Other claims declined.
Orders
- Respondent to pay the grievant Kshs 143,382 as compensation.
- Respondent to pay the grievant Kshs 22,368 as pay in lieu of notice.
Full Case Text
Judgment text and source record
37 paragraphs
Kenya Engineering Workers Union v Farm Engineering Industries Ltd (Cause 47 of 2019) [2022] KEELRC 4005 (KLR) (28 September 2022) (Judgment)
Neutral citation: [2022] KEELRC 4005 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kisumu
Cause 47 of 2019
S Radido, J
September 28, 2022
Between
Kenya Engineering Workers Union
Claimant
and
Farm Engineering Industries Ltd
Respondent
Judgment
1. The Kenya Engineering Workers Union (the Union) sued Farm Engineering Industries Ltd (the Respondent), and it stated the Issue in the Dispute as follows:Unprocedural, unlawful and unlawful dismissal of Mr Evans Nyakundi.
2. The Respondent filed a Response on 13 September 2019, and the Union filed an amended Memorandum of Claim on 6 December 2021, and this prompted the Respondent to file another Response on 17 March 2022.
3. The Cause was heard on 4 April 2022 and 19 May 2022 (the Grievant and a Service Manager with the Respondent testified).
4. The Union’s submissions were not on record by 15 July 2022 as directed, and the Respondent on 29 August 2022.
5. The Court has considered the pleadings, evidence, and submissions.
Unfair termination of employment 6. The Respondent employed Mr Evans Nyakundi (the Grievant) as a mechanic in 1998. He was later deployed as a driver.
7. The Respondent suspended the Grievant around 19 November 2018, and the letter indicated that investigations had established his involvement in the theft of the Respondent's assets.
8. The suspension was followed by summary dismissal on 27 November 2018 (the Union reported a trade dispute, but the Respondent disagreed with the findings and recommendations).
9. Section 35(1)(c) of the Employment Act, 2007, requires an employer to issue a written notice at least 28 days in advance of termination. The Respondent did not issue such a letter.
10. Similarly, section 41(2) of the Act makes it mandatory for an employer to conduct an oral hearing in cases warranting an employee's summary dismissal before deciding to dismiss.
11. The Respondent did not place before the Court any evidence that it called the Grievant to an oral hearing to respond to the allegations of involvement in the alleged theft.
12. The Court finds that the summary dismissal of the Grievant was unfair.
Compensation and Pay in lieu of notice 13. The Grievant served the Respondent for nearly 20 years, and in consideration of the length of service, the Court is of the view that the equivalent of 6 months’ gross salary as compensation would be fair (gross salary was Kshs 23,897/- in May 2018).
14. The Respondent did not issue an advance written notice of termination as contemplated by section 35(1)(c) of the Employment Act, 2007. The Court will allow the equivalent of 1 month’s salary in lieu of notice in the sum of Kshs 22,368/-.
Service Gratuity 15. The Grievant contributed to the National Social Security Fund and, by dint of section 35(5) & (6) of the Employment Act, 2007, is not entitled to service pay.
Accrued leave 16. The Union sought Kshs 25,728/- said to be accrued leave. No evidential foundation to this head of the claim was put before the Court, and relief is declined.
Leave travelling allowance 17. The Union did not present an evidential foundation to this head of the claim, and relief is declined.
Earned salary 18. Again, no evidential foundation to this head of the claim was placed before the Court and relief is declined.
Certificate of Service 19. A Certificate of Service is a statutory right, and the Respondent should issue one to the Grievant.
Conclusion and Orders 20. The Court finds and declares that the dismissal of the Grievant was unfair, and he is awarded:i.Compensation Kshs 143,382/-ii.Pay in lieu of notice Kshs 22,368/-TOTAL Kshs 165,750/-
21. Respondent to issue a Certificate of Service to the Grievant within 21 days.
22. The parties are social partners. No order on costs.
DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 28TH DAY OF SEPTEMBER 2022. RADIDO STEPHEN, MCIArbJUDGEAppearancesFor Union Mr. Makale, industrial Relations OfficerFor Respondent M.M. Gitonga & Co. AdvocatesCourt Assistant Chrispo Aura