Sotik Highlands Tea Estate Ltd v Kenya Plantation and Agricultural Workers Union (Civil Appeal 8 of 2017) [2024] KECA 258 (KLR)
The bottom line
#Employers can fire striking workers, but the Court of Appeal confirmed each employee must still get an individual fair hearing before dismissal.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of termination of employees who took part in an unprotected strike
The reason for dismissal was valid because the grievants engaged in an unprotected strike, but the termination was unfair because the employer adopted a collective/blanketed disciplinary procedure rather than affording each employee an individual fair hearing.
Sections 76, 78 and 79 of the Labour Relations Act prescribe procedural requirements for strikes, and non-compliance rendered the strike unprotected, removing section 46 Employment Act protection and exposing the employees to discipline. However, section 41 Employment Act and Articles 47 and 50(1) of the Constitution mandate an individualised process: notice of allegations understood by the employee and a chance to respond. Service by loudhailer and group assembly did not guarantee all employees knew of or could attend hearings, so the dismissal failed the fairness test.
Liability of a trade union for losses arising from an unprotected strike
An employer can sue a trade union for damages arising from an unprotected strike, but must prove the three Rustenburg Platinum Mines requirements; on the facts there was no nexus between the union and the spontaneous strike, so the counterclaim failed.
Section 80 of the Labour Relations Act limits remedies against employees, but section 12 of the Employment and Labour Relations Court Act, 2011 empowers the E&LRC to award compensation or damages in any circumstances, including claims against trade unions. Comparative South African and US authority confirms union liability where the union authorises, instigates or ratifies the strike or fails to take reasonable precautions. Here the strike was spontaneous, initiated by grievants on their own motion, and the union intervened only afterwards to resolve it.
Interference with discretionary remedies for unfair termination
The Court declined to interfere with the trial court's exercise of discretion in awarding May 2012 salary, one month's pay in lieu of notice and terminal benefits, since no misdirection or injustice was shown and the appellant adduced no proof of payment.
Remedies under section 49 of the Employment Act are discretionary; an appellate court interferes only where the judge misdirected himself or was clearly wrong and occasioned injustice. On the salary claim the appellant merely denied it without adducing payment vouchers or other proof. The grievants' contributory fault through the unprotected strike was already taken into account by the trial court in confining the awards.
Completeness of the trial judgment delegating computation to the Commissioner of Labour
The judgment was complete and not a delegation of judicial function because the orders defined the boundaries of the computation; the direction merely facilitated execution.
While a judgment must be complete when pronounced and judicial functions cannot be delegated, the principle in Kenya Revenue Authority v Menginya Murgani was distinguishable: the Commissioner of Labour was directed to calculate specified, already-identified heads of award within defined boundaries under orders (ii), (iii) and (iv). The order was therefore ministerial in character and unobjectionable.
Legal principles established
#- Even where an employer is entitled to dismiss employees for participating in an unprotected strike, it must still comply with the fair-hearing procedure in section 41 of the Employment Act and Articles 47 and 50(1) of the Constitution; a collective or blanket disciplinary procedure does not satisfy this requirement.
- An employer may sue a trade union for damages arising from an unprotected strike, but must prove the strike was unprotected, that the losses flowed from it, and that the union was complicit by calling for or participating in the strike.
- Section 12 of the Employment and Labour Relations Court Act, 2011 empowers the E&LRC to award compensation or damages for losses in an unprotected strike beyond the remedies in section 80 of the Labour Relations Act.
- Not every undefended or unopposed claim must succeed; the claimant still bears the burden of proof.
Court orders
#- 1.Appeal dismissed with costs to the respondent
- On appeal from
- Employment and Labour Relations Court, Kericho
- Cause No. 218 of 2015
- Jurisdiction invoked
- First appeal to the Court of Appeal under Rule 31(1)(a) of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sotik Highlands Tea Estate Ltd v Kenya Plantation and Agricultural Workers Union (Civil Appeal 8 of 2017) [2024] KECA 258 (KLR)", Case Analysis (2024). Employment and Labour Relations Appeal from E&LRC Kericho Cause No. 218 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/258/eng@2024-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.