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ELRCPartially AllowedCause Nos. 50 & 119 of 2000· [2002] KEELRC 17 (KLR)

KENYA UNION OF COMMERCIAL, FOOD & ALLIED WORKERS v SECURITY HOLDINGS & another [2002] KEELRC 17 (KLR)

Industrial Court of Kenya
19 April 2002
4,433 words in judgment
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The bottom line

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Kenya's Industrial Court ruled that security guards fired for demanding unpaid salaries were wrongfully dismissed and deserved compensation.

What this practically means

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Executive summary

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In this consolidated award the Industrial Court at Nairobi, presided over by Charles P. Chemmuttut, J with Members A.K. Kerich and H.B.N. Gicheru concurring, determined two trade disputes referred by the Minister for Labour under the Trade Disputes Act, Cap. 234. In Cause No. 50 of 2000, 28 security guards employed by Security Holdings Ltd and Simba Security Ltd had been summarily dismissed in May 1999 for allegedly harassing staff and defying instructions while demanding belated April salaries. The Court noted the Companies' admitted persistent late payment of wages contrary to Section 5(2)(c) of the Employment Act. It held that demanding lawful dues could not constitute disobedience of a lawful and reasonable order, that the abusive-language allegation failed for want of particulars, and that the accompanying service certificates showed no stigma. The Court upheld the Minister's findings and recommendation, effectively reducing the summary dismissal to normal termination with terminal benefits and compensation on the Minister's scale. In Cause No. 119 of 2000, the claim in respect of Jeremiah Handa Omondi was dismissed as withdrawn. As regards shopsteward Crispine Obure, dismissed after over 22 years' service allegedly for incitement, the Court found no evidence supporting the charges and adopted the Minister's finding that he was victimised for trade union activities. He was awarded terminal benefits and ten months' compensation totalling Kshs. 141,260.70. The second Union appeared as interested party supporting the claims; no costs order was made.

Key legal issues

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01

Whether demanding payment of belated salaries constitutes gross misconduct under Section 17(e) of the Employment Act

Holding

No misconduct was made out; the grievants were owed their salaries and their congregation to demand them was reasonable grumbling, not disobedience of a lawful and reasonable order.

Reasoning

The salaries had fallen due at the end of April 1998 and were unpaid on the promised date of 20th May 1998 due to the Companies' cash flow problems. The Court held the order to wait elsewhere was not lawful and reasonable in the circumstances, since employees are generally not economically well-off and delay in payment naturally provokes grumbling. Accordingly no case of misconduct under Section 17(e) was established.

p. 6
02

Whether the allegation of abusive or insulting language under Section 17(d) was sustainable

Holding

The allegation was rejected as bad in law for lack of particulars of the words allegedly used.

Reasoning

The Court found that no particulars of the words actually uttered by the grievants were given. Without such particulars the allegation of insulting or abusive language had no legal significance and could not justify summary dismissal under Section 17(d) of the Employment Act.

p. 6
03

Whether Crispine Obure's summary dismissal was justified

Holding

The dismissal was bad in law and without lawful authority; there was no evidence implicating the grievant, who appeared to have been victimised for trade union activities.

Reasoning

The Company levelled serious charges but gave no reasons nor adduced oral or documentary evidence that employees failed to collect wages, that work stopped, or that operations suffered. The Minister's investigator had found the allegations unsubstantiated, hearsay, and that the grievant was victimised contrary to the Industrial Relations Charter. The Court therefore awarded terminal benefits and ten months' compensation.

p. 8

Legal principles established

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  • For disobedience to amount to misconduct justifying summary dismissal, the order disobeyed must be both lawful and reasonable; refusal of pay one is lawfully owed cannot found dismissal
  • An employer who pays wages later than the end of each month for an employee employed over one month breaches Section 5(2)(c) of the Employment Act
  • Dismissal connotes removal of an employee from service by way of punishment and carries serious consequential consequences

Court orders

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  1. 1.Upheld the Minister's findings and recommendation in Cause No. 50 of 2000 and awarded in terms thereof (summary dismissal reduced to normal termination with terminal benefits and compensation per the Minister's scale)
  2. 2.Dismissed the claim in respect of Mr. Jeremiah Handa Omondi as withdrawn
  3. 3.Awarded Mr. Crispine Obure terminal benefits and ten months' compensation amounting to Kshs. 141,260.70

Authorities

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Legislation

  • Trade Disputes Act, Cap. 234, Laws of KenyaSections 4, 7, 8, 14(7), 14(9)(e) and (f)
  • Employment Act, Cap. 226, Laws of KenyaSections 5, 5(2)(c), 17(d) and (e)
  • Protective Security Services Order(terms and conditions of service, last reviewed 1998)
Jurisdiction invoked
Section 8 of the Trade Disputes Act, Cap. 234 (reference by the Minister for Labour)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "KENYA UNION OF COMMERCIAL, FOOD & ALLIED WORKERS v SECURITY HOLDINGS & another [2002] KEELRC 17 (KLR)", Case Analysis (2002). Cause Nos. 50 & 119 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2002/17/eng@2002-04-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.