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ELRCDismissedCause No. 48 of 2012 (Notice of Motion dated February 29, 2012)· [2012] KEELRC 53 (KLR)

AVIATION AND ALLIED WORKERS UNION V KENYA AIRWAYS LIMITED [2012] KEELRC 53 (KLR)

Industrial Court of Kenya
29 August 2012
BOByram Ongaya
2,909 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 refused to stop Kenya Airways' disciplinary process, ruling employees must first use workplace procedures unless the process is unfair.

What this practically means

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Executive summary

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This is a ruling on the claimant union's Notice of Motion dated February 29, 2012 seeking interim orders suspending a final warning letter dated January 9, 2012 and restraining the disciplinary process against the grievant, Mr. Antony Ojee Odiyo, a Kenya Airways cabin crew member who missed rostered flight KQ 550 on February 9, 2012 after allegedly failing to board scheduled staff transport. The union argued the process was unfair: it proceeded as absenteeism rather than lateness, involved a disciplinary panel based on a disciplinary code unilaterally made by the respondent and never domesticated into a collective agreement, and a final warning issued without prior warnings. The respondent maintained the process was investigative and constitutionally grounded in fair labour practices and should be allowed to continue. The court framed three issues: validity of a unilaterally made disciplinary code, the court's jurisdiction to intervene in a pending disciplinary process, and whether interim orders were warranted. It held the employer was entitled under the recognition agreement to issue disciplinary handling procedures binding on unionisable staff; that the court has jurisdiction over pending disciplinary actions under Article 165(5) of the Constitution and the Employment Act, 2007; and it set out principles governing intervention, applying Miguna Miguna and Muthusi v Gathogo. Finding the threshold unmet, the court dismissed the application, ordered that the grievant remain in employment and on duty pending conclusion of the disciplinary process, and directed each party to bear its own costs.

Key legal issues

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01

Validity of a unilaterally made administrative disciplinary code

Holding

The employer was entitled to issue disciplinary handling procedures for its unionisable staff

Reasoning

The recognition agreement incorporated staff rules, notices and standing instructions. The recognition and collective agreements did not themselves provide a disciplinary procedure or institutional framework, so the employer's disciplinary handling procedures were consistent with the agreements and bound the parties and the grievant.

p. 3
02

Jurisdiction to intervene in a pending disciplinary process

Holding

The court has jurisdiction over disputes relating to pending administrative disciplinary actions

Reasoning

Article 165(5) establishes the court for employment and labour relations disputes and section 12 of the Employment Act, 2007 confers jurisdiction, including power under section 12(3)(i) to make interim preservation orders including injunctions in urgent cases. Such orders do not oust the court's competence or create bias in future related disputes.

p. 3
03

Whether the threshold for interim intervention was met

Holding

It was not; the application was dismissed

Reasoning

The dispute whether the misconduct was lateness or absenteeism, and arguments about sufficiency of time to respond, were matters properly ventilated before the disciplinary panel where the claimant is represented. Disputed characterisation of the misconduct did not meet the threshold for stopping the process in the interim.

p. 4

Legal principles established

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  • The court may intervene in a pending administrative disciplinary process where it offends natural justice, breaches agreed or prescribed standards, or would result in manifest injustice, and will not intervene where internal remedies exist and have not been exhausted
  • An employer is entitled, within a recognition agreement, to unilaterally issue staff rules and disciplinary procedures binding on unionisable staff provided they are not inconsistent with the applicable agreement, statute or the Constitution
  • Making preservative orders in a pending disciplinary process does not make the court part of the process or biased in later related disputes

Court orders

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  1. 1.The grievant shall remain in the employment and duty of the respondent until the conclusion of the disciplinary process occasioning the commencement of this cause unless otherwise lawfully disciplined on account of substantially different and proven misconduct
  2. 2.The application dated February 29, 2012 is dismissed
  3. 3.Parties to bear their own costs of the application
Jurisdiction invoked
Article 165(5) of the Constitution; section 12 of the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "AVIATION AND ALLIED WORKERS UNION V KENYA AIRWAYS LIMITED [2012] KEELRC 53 (KLR)", Case Analysis (2012). Cause No. 48 of 2012 (Notice of Motion dated February 29, 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/53/eng@2012-08-29

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