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ELRCPartially AllowedCause 1365 of 2011· [2012] KEELRC 218 (KLR)

KENYA PLANTATION & AGRICULTURAL WORKERS UNION V MAJI MAZURI FLOWERS LTD [2012] KEELRC 218 (KLR)

Industrial Court of Kenya
21 November 2012
MNMathews N. Nduma
2,191 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 a signed return to work agreement is binding, so an employer cannot legally fire workers for going on strike afterwards.

What this practically means

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Executive summary

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This first-instance award of the Industrial Court of Kenya arose from the dismissal of employees of Maji Mazuri Flowers Ltd who participated in a brief unprotected strike on 5th August 2011 in Uasin Gishu. The parties abandoned the claimant union's Notice of Motion seeking an injunction against the dismissals, since the employees had already been dismissed, and proceeded to the main claim concerning eleven named grievants. The court identified three issues: whether the Respondent was bound by the Return to Work Formula concluded on 5th August 2011 before the District Labour Officer; whether the terminations were substantively and procedurally fair; and what remedies were due. The court held that the Return to Work Formula, recorded in writing and signed by the parties and the conciliator, satisfied Section 68 of the Labour Relations Act, 2007 and constituted a binding and enforceable contract. The Respondent's dismissal of the grievants the very next day, despite a term that there would be no victimization for strike participation, was a bad-faith reneging on that agreement. Relying on strike participation, which it had contracted away, gave the Respondent no valid reason for termination, rendering the dismissals substantively unfair under Sections 43 and 45 of the Employment Act, 2007; the same-day disciplinary hearings with short notice and no representation of the employees' choice breached Section 41, making the terminations procedurally unfair. The court ordered immediate reinstatement of the eleven grievants without loss of benefits and awarded the claimant costs of the suit. The alternative claims for terminal benefits, damages and compensation were not pursued in the final orders.

Key legal issues

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01

Whether the Respondent was bound by the Return to Work Formula not to dismiss the grievants for engaging in an unprotected strike.

Holding

Yes. The Return to Work Formula satisfied the requirements of Section 68 of the Labour Relations Act, 2007, being recorded in writing and signed by the parties and the conciliator, and was therefore a binding and enforceable contract which the Respondent blatantly breached.

Reasoning

The court held that the legislation intends disputes to be resolved at conciliation, and that enforceability of conciliation outcomes is key to industrial peace. Where parties conclude a written agreement signed by all parties and the conciliator, it is clearly intended to be a binding contract. The Respondent, a party to a Recognition Agreement with capacity to enter binding agreements, reneged on the formula 'even before the ink had dried', displaying lack of good faith. The English authority Thakrar v Cir Cittero Menswear plc, holding a mediated settlement enforceable as a contract, was invoked in support.

p. 4
02

Whether the termination of the grievants' employment was substantively and procedurally fair.

Holding

No. The termination was both substantively and procedurally unfair.

Reasoning

Having bound itself not to rely on participation in the unprotected strike, the Respondent had no other valid reason for the terminations and failed to prove a valid reason on a balance of probabilities under Section 43(1) of the Employment Act, rendering the dismissals substantively unfair under Section 45. Procedurally, the grievants were given short notices to respond and were denied representation of their choice in disciplinary proceedings hurriedly conducted on the same day, in blatant breach of Section 41 of the Employment Act, 2007.

p. 4
03

What remedies, if any, the grievants are entitled to.

Holding

Reinstatement without loss of benefits under Section 49(3)(a) of the Employment Act, plus costs.

Reasoning

In exercising the reinstatement discretion the court considered the wishes of the employees, the circumstances of the termination following a return to work formula, the lapse of about a year and two months since termination, and that the grievants were low cadre employees capable of effective supervision by their immediate managers. On those factors reinstatement was appropriate; the alternative prayers for terminal benefits and compensation fell away.

p. 5

Legal principles established

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  • A written return to work formula or conciliation settlement recorded in writing and signed by the parties and the conciliator under Section 68 of the Labour Relations Act is a binding and enforceable contract between the parties.
  • Where an employer binds itself by a return to work formula not to victimize or dismiss strikers, any later reliance on participation in the unprotected strike constitutes an invalid reason for termination, rendering the dismissal substantively unfair under Sections 43 and 45 of the Employment Act.
  • A disciplinary process conducted the same day notices to show cause were served, without adequate notice and without representation of the employee's choice, breaches Section 41 of the Employment Act and renders the termination procedurally unfair.

Court orders

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  1. 1.The Notice of Motion dated 9th August 2011 seeking an injunction to restrain the dismissal of the grievants was abandoned by agreement of the parties.
  2. 2.The Respondent was found to be bound by the Return to Work Formula dated 5th August, 2011.
  3. 3.The Respondent to immediately reinstate the eleven (11) grievants named in the judgment and treat them in all respects as if their employment had not been terminated.
  4. 4.The Respondent to pay the costs of the suit.

Authorities

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Legislation

  • Labour Relations ActSection 76
  • Labour Relations ActSection 80(1)
  • Labour Relations ActPreamble - promotion of orderly and expeditious dispute settlement
  • Labour Relations ActSection 68(1)
  • Employment ActSection 43(1)
  • Employment ActSection 45(1)
  • Employment ActSection 45(2)
  • Employment ActSection 41
  • Employment ActSection 49(3)(a)
  • Employment ActSection 50
  • Collective Bargaining Agreement (parties')Clause 26

Cases cited (1)

  • Thakrar V Cir Cittero Menswear plc (in administration)
    {2002} EWHC 1975 (ch)
Jurisdiction invoked
Original jurisdiction of the Industrial Court over a labour dispute (Trade Dispute) between a trade union and an employer; no specific constitutional or statutory jurisdictional provision is cited in the judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "KENYA PLANTATION & AGRICULTURAL WORKERS UNION V MAJI MAZURI FLOWERS LTD [2012] KEELRC 218 (KLR)", Case Analysis (2012). Cause 1365 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/218/eng@2012-11-21

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