Kenya Union of Commercial Food and Allied Workers v Shivam Enterprises Ltd. [2013] KEELRC 200 (KLR)
The bottom line
#A Kenyan court ruled that firing an employee for joining a union was unlawful and awarded her a full year's salary in compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the reason for termination (late coming) was a valid reason under Section 45(2) of the Employment Act
The reason was invalid; the true reason was victimization for union membership, violating freedom of association.
Although the grievant may have come late, the parties had an agreement that late-coming would be dealt with by salary deduction, which was implemented across the board including against the grievant. She had no warning letters, so the court presumed a good work record. The judgment in Cause No. 756 of 2011 corroborated her testimony that union members were coerced to resign and those who declined were terminated. Late coming was therefore a pretext for victimization on account of union membership.
Burden of proof under Section 47(5) of the Employment Act
The grievant satisfied the onus of showing the termination was unlawful; the Respondent failed to justify the reason.
Once the grievant testified that she was terminated without warning, without a hearing and amid a recognition dispute with the union, and the Respondent's own conduct was corroborated by the earlier ruling, the onus shifted. The Respondent failed to show a justified reason within the meaning of section 45(2)(a) and (c). The termination was therefore both substantively unlawful and procedurally unfair.
Appropriate remedy for unlawful and unfair termination
Maximum compensation of 12 months' salary awarded under Section 49(1)(c), plus terminal benefits per the consent.
The court took a serious view of the Respondent's conduct in victimizing employees for joining a union, treating the violation of the constitutional right to freedom of association as warranting the maximum compensation available. The terminal benefits awarded mirrored the consent recorded by the parties, and a service certificate and costs were also ordered.
Legal principles established
#- Employees have a statutory and constitutional right to join a union of choice and victimization for union membership is a violation of freedom of association and renders termination unlawful.
- A claimant who shows that a termination was not justified under section 45(2)(a) and (c) of the Employment Act discharges the onus under section 47(5).
- Absence of any warning letter in an employee's file supports a presumption of a good work record.
Court orders
#- 1.Compensation of 12 months' salary (Kshs.276,000/=) for unlawful and unfair termination under Section 49(1)(c) of the Employment Act
- 2.Service pay at the rate of 15 days for 3 years and 8 months worked (Kshs.50,423/=)
- 3.Payment in lieu of leave (Kshs.23,000/=)
- 4.Salary for the month of May (Kshs.23,000/=)
- 5.One month's salary in lieu of notice (Kshs.23,000/=)
- 6.Total award Kshs.395,430/= (as stated in the judgment)
- 7.Respondent to issue the Claimant with a service certificate immediately
- 8.Costs of the suit to be borne by the Respondent
- Jurisdiction invoked
- Trade dispute referred to the Industrial Court under the Labour Relations Act (victimization on account of trade union membership and ensuing termination); Employment Act ss. 45, 47(5), 49(1)(c)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial Food and Allied Workers v Shivam Enterprises Ltd. [2013] KEELRC 200 (KLR)", Case Analysis (2013). Not stated in the judgment extract (issue in dispute filed 24th October, 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/200/eng@2013-08-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.