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ELRCAllowedNot stated in the judgment extract (issue in dispute filed 24th October, 2011)· [2013] KEELRC 200 (KLR)

Kenya Union of Commercial Food and Allied Workers v Shivam Enterprises Ltd. [2013] KEELRC 200 (KLR)

Industrial Court of Kenya
27 August 2013
1,376 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was a first-instance trade dispute referred to the Industrial Court on 24th October, 2011 concerning victimization of the grievant, Ms. Mercy M. Kariuki, on account of her trade union membership and her ensuing termination. By a consent recorded on 22nd May, 2013, the Respondent agreed to pay terminal benefits totalling Kshs.119,423/= (notice, leave, May salary and severance pay), leaving the court to determine only whether the termination was unlawful and unfair. The grievant, employed as an accountant from 1st October, 2007, testified she was summarily handed a termination letter on 31st May, 2011 citing late coming, without a hearing, warning or union representation, amid a recognition dispute between the union and the Respondent. The Respondent's General Manager, Mr. Yogish S. Patel, denied coercion of employees to leave the union and maintained the termination was for lateness. The court relied on Rika J's ruling in the recognition dispute (Cause No. 756 of 2011) as corroborating the grievant's account that union members were coerced to resign and those who refused were terminated. It held that late coming was not a valid reason since lateness was dealt with by salary deduction under an existing agreement, and that the grievant's clean record (no warning letters) rebutted the Respondent's case. The termination was found substantively unlawful and procedurally unfair, and a violation of the constitutional right to freedom of association. The court awarded maximum compensation of 12 months' salary (Kshs.276,000/=) plus terminal benefits, a service certificate, and costs to the Respondent.

Key legal issues

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01

Whether the reason for termination (late coming) was a valid reason under Section 45(2) of the Employment Act

Holding

The reason was invalid; the true reason was victimization for union membership, violating freedom of association.

Reasoning

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.

p. 3
02

Burden of proof under Section 47(5) of the Employment Act

Holding

The grievant satisfied the onus of showing the termination was unlawful; the Respondent failed to justify the reason.

Reasoning

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.

p. 3
03

Appropriate remedy for unlawful and unfair termination

Holding

Maximum compensation of 12 months' salary awarded under Section 49(1)(c), plus terminal benefits per the consent.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Compensation of 12 months' salary (Kshs.276,000/=) for unlawful and unfair termination under Section 49(1)(c) of the Employment Act
  2. 2.Service pay at the rate of 15 days for 3 years and 8 months worked (Kshs.50,423/=)
  3. 3.Payment in lieu of leave (Kshs.23,000/=)
  4. 4.Salary for the month of May (Kshs.23,000/=)
  5. 5.One month's salary in lieu of notice (Kshs.23,000/=)
  6. 6.Total award Kshs.395,430/= (as stated in the judgment)
  7. 7.Respondent to issue the Claimant with a service certificate immediately
  8. 8.Costs of the suit to be borne by the Respondent

Authorities

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Legislation

  • Employment ActSection 45(2)(a) and (c)
  • Employment ActSection 47(5)
  • Employment ActSection 49(1)(c)

Cases cited (1)

  • Cause No. 756 of 2016 between the Claimant union and the Respondent (judgment of Hon. Mr. Justice Rika)
    Cause No. 756 of 2011
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

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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 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.