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ELRCStruck OutNot stated in extract· [2013] KEELRC 24 (KLR)

Communication Workers Union [Kenya] v Telkom Kenya Limited [2013] KEELRC 24 (KLR)

Industrial Court (Employment and Labour Relations Court)
9 December 2013
JRJames Rika
782 words in judgment
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The bottom line

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Kenya's Employment Court struck out a union's unfair dismissal claim because it cited the wrong law and filed too late, but allowed a fresh filing.

What this practically means

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Executive summary

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The Respondent raised a preliminary challenge to the Claim brought by the Claimant Union on behalf of Grievant Beatrice Mukholwe, a Senior Clerical Officer summarily dismissed on 31st March 2006 over alleged fraudulent preparation of credit adjustments. The Respondent argued the Memorandum of Claim, filed on 6th August 2009, exceeded the three-year limitation period in Section 90 of the Employment Act 2007, relying on two Industrial Court decisions. The Claimant countered that the Grievant had pursued an internal appeal (rejected in November 2006), reported a trade dispute to the Minister for Labour in June 2007 under Section 47(1) of the Employment Act 2007, and obtained a March 2009 recommendation for reinstatement which the Respondent declined to implement in April 2009; the Claim followed within weeks and was thus not time-barred. The Court held that since the dismissal predated the Employment Act 2007, that Act - including Section 90 - was wholly inapplicable; the substantive law was the repealed Employment Act Cap 226 read with Section 15 of the Trade Disputes Act Cap 234. Procedurally, the dispute should have been referred under the transitional provisions of Section 84 and Schedule 5 of the Labour Relations Act No. 14 of 2007 in accordance with the Trade Disputes Act. Section 90 does not recognise non-adjudicatory dispute resolution mechanisms in computing time. The Court struck out the Claim as improperly before it, granted liberty to bring fresh proceedings under Section 84 of the Labour Relations Act, and made no order on costs. Judgment delivered at Nairobi on 9th December 2013 by James Rika, Judge.

Key legal issues

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01

Applicability of Section 90 of the Employment Act 2007 to a pre-2007 dismissal

Holding

The Employment Act 2007 is wholly without application to a dismissal that took place before its commencement; relying on it renders the claim time-barred

Reasoning

The Grievant was dismissed on 31st March 2006 when the Employment Act 2007 was not in force. The substantive law governing her remedies was the repealed Employment Act Cap 226 read with Section 15 of the Trade Disputes Act Cap 234. Invoking the 2007 Act brought Section 90's three-year limit into play, under which the claim filed in August 2009 was out of time, and Section 90 does not recognise the non-adjudicatory dispute resolution route taken by the Claimant.

p. 2
02

Correct procedural route for pre-Labour Relations Act dismissal disputes

Holding

The dispute should have been referred under the repealed Trade Disputes Act pursuant to the transitional provisions in Section 84 and Schedule 5 of the Labour Relations Act No. 14 of 2007

Reasoning

Schedule 5 of the Labour Relations Act directs that disputes relating to summary dismissal claims arising before its enactment be filed in accordance with the Trade Disputes Act. The correct procedure was referral to the Minister and then to the Court under that repealed Act, under which Section 90 of the 2007 Act would not arise. The Claimant's failure to follow this route made the Claim improperly before the Court, though leave was given to file fresh proceedings.

p. 2

Legal principles established

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  • The substantive law applicable to a dismissal is the law in force at the time of dismissal, not a later statute
  • Pre-2007 summary dismissal disputes must be filed in accordance with the repealed Trade Disputes Act per the transitional provisions of the Labour Relations Act

Court orders

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  1. 1.The Claim is improperly before the Court and is struck out
  2. 2.The Claimant is at liberty to bring fresh proceedings under Section 84 of the Labour Relations Act
  3. 3.No order on the costs

Authorities

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Legislation

  • Employment Act 2007Section 90
  • Employment Act 2007Section 47(1)
  • Employment Act 2007Section 47(2) and Section 49(3)
  • Employment Act Cap 226 (repealed)substantive law on dismissal
  • Trade Disputes Act Cap 234 (repealed)Section 15
  • Labour Relations Act Number 14 of 2007Section 84 and Schedule 5 (transitional provisions)
  • Regulation of Wages and Conditions of Employment Act Cap 229 (repealed)substantive law

Cases cited (2)

  • Nelson Ochieng' Nyoturu v. Telkom Kenya Limited
    Cause Number 687 of 2011
  • Kilo Kimilu and 2 Others v. Rolmil Kenya Limited
    Cause Number 1162 of 2011
Jurisdiction invoked
Jurisdiction exercised under the transitional provisions of Section 84 of the Labour Relations Act No. 14 of 2007 read with the repealed Trade Disputes Act Cap 234

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, "Communication Workers Union [Kenya] v Telkom Kenya Limited [2013] KEELRC 24 (KLR)", Case Analysis (2013). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/24/eng@2013-12-09

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