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ELRCAllowedCause No. 69 of 2006· [2007] KEELRC 6 (KLR)

KENYA LOCAL GOVERNMENT WORKERS’ UNION v KIKUYU TOWN COUNCIL [2007] KEELRC 6 (KLR)

Industrial Court of Kenya
15 February 2007
3,102 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court ruled that workers dismissed for demanding six months of unpaid salaries must be reinstated with full pay and benefits.

What this practically means

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Executive summary

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The Minister for Labour referred to the Industrial Court a trade dispute concerning the retrospective dismissal of ten grievants, being the entire branch officials of the Kenya Local Government Workers' Union employed by Kikuyu Town Council. The dispute arose from unpaid salary arrears exceeding Kshs. 6 million; when employees assembled at the Council offices on 1st July 1998 to demand payment, the grievants were suspended and later dismissed retrospectively with effect from 1st July 1998 for alleged illegal strike, assault and related misconduct. The Union, through its National General Secretary, contended that the dismissals were unlawful, denied natural justice and amounted to victimization for trade union activities, contrary to Article 13 of the collective bargaining agreement, the Industrial Relations Charter, ILO Conventions 98 and 135 and Section 23 of Cap. 233. The Council, in a written submission filed ex-parte, maintained the grievants stormed the Chairman's office to eject the new Town Clerk and were dismissed for gross misconduct. The Labour investigator had recommended unconditional reinstatement, which the Council rejected. The Court held that demanding salary arrears was not misconduct under Section 17 of the Employment Act; that selecting all branch officials out of a workforce of 50 was actuated by a motive to victimize them for their trade union activities; and that the dismissal was too severe and extremely harsh. Following its earlier decision in Cause No. 8 of 2001 involving the same Union, the Court upheld the Minister's recommendation and ordered unconditional reinstatement of all ten grievants from 1st July 1998 without loss of salaries, benefits, seniority and continuity of service, with reporting to the Town Clerk within 21 days. No costs order was made.

Key legal issues

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01

Whether demanding unpaid salary arrears constitutes misconduct under Section 17 of the Employment Act

Holding

It does not; delayed payment may reasonably provoke employees to demand their dues.

Reasoning

The Court held that employees are generally not economically well-off and any delay in payment of dues may create justifiable agitation. The grievants assembled at the Council offices to demand accumulated salary arrears of about Kshs. 6 million which was not denied. Selecting them out of the total labour force of 50 employees on unsubstantiated multiple offences was unjustified.

p. 5
02

Whether the dismissal of the entire branch officials constituted victimization and unfair labour practice

Holding

Yes; the selection of all branch officials for punishment out of 50 employees was actuated by a motive to victimize them for their trade union activities, contrary to Article 13 of the CBA, the Industrial Relations Charter, ILO Conventions 98 and 135 and natural justice.

Reasoning

The Court accepted the Union's submission that the grievants, being the entire branch leadership, were punished purely for ventilating employees' grievances. The Council's written submission was found to be bare allegations without supporting documents. The Court followed its own decision in Cause No. 8 of 2001 on materially identical facts involving the same Union.

p. 5
03

Whether the dismissal was proportionate

Holding

No; the dismissal was too severe and extremely harsh.

Reasoning

The Court stated that even where management has wide internal administrative powers, they must be exercised judiciously, and punishment must aim at correction rather than vengeance. Dismissal of all branch officials retrospectively was disproportionate to the alleged offences.

p. 5

Legal principles established

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  • A demand by employees for payment of their salary arrears does not amount to misconduct under Section 17 of the Employment Act.
  • In a trade dispute arising out of dismissal, the Court may inquire whether the dismissal was mala fide, improperly motivated or an act of victimization.
  • Punishment must be commensurate with the offence and must not be vindictive.

Court orders

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  1. 1.Upheld the Minister's findings and recommendation
  2. 2.Ordered that the grievants be unconditionally reinstated to their jobs or posts from the date of their dismissal, i.e. 1st July 1998, without loss of their full salaries, benefits, allowances, privileges, seniority and continuity of service
  3. 3.Ordered the grievants to unconditionally report to the Town Clerk within twenty one (21) days from the date of the award for deployment
  4. 4.Copies of the award to be served upon the Permanent Secretary, Ministry of Local Government, and the Town Clerk, Kikuyu Town Council
Jurisdiction invoked
Section 8 of the Trade Disputes Act, Cap. 234, Laws of Kenya (dispute referred by the Minister for Labour); award made under Section 15(1)(i) of the Act

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 LOCAL GOVERNMENT WORKERS’ UNION v KIKUYU TOWN COUNCIL [2007] KEELRC 6 (KLR)", Case Analysis (2007). Cause No. 69 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2007/6/eng@2007-02-15

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