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ELRCPartially AllowedIndustrial Cause No. 44 of 2011· [2013] KEELRC 405 (KLR)

KENYA PLANTATION AND AGRICULTURAL WORKERS UNION V BILASHAKA FLOWERS LIMITED [2013] KEELRC 405 (KLR)

Industrial Court of Kenya
12 April 2013
BOByram Ongaya
2,735 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 flower farm workers were unfairly sacked for raising a safety complaint, awarding each a full year's salary.

What this practically means

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Executive summary

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The Kenya Plantation and Agricultural Workers Union, on behalf of seven grievants employed by Bilashaka Flowers Limited, claimed that the grievants were suspended and later terminated for raising a genuine health and safety grievance: on 25.02.2010 workers in greenhouse 4 declined to reenter the greenhouse before the lapse of the reentry period after spraying, but were instructed to resume work while the flowers were still wet. The claimant sought declarations of unlawful lockout and violations of Articles 36 and 41 of the Constitution, the Occupational Health and Safety Act and the ILO Workers Representative Convention 135, plus reinstatement or wages and costs. The respondent denied the claims, asserting the shop stewards incited an illegal work stoppage. The court found the terminations unfair both substantively and procedurally: the respondent proved neither alleged reason (absenteeism on 5.03.2010 or incitement on 25.02.2010), and the general grievance meetings fell short of the notification and hearing required by section 41 of the Employment Act. On a balance of probabilities the court found staff were asked to reenter at 10.30 am, before the 10.45 am reentry time, and that the grievants followed the agreed grievance procedure; punishing a genuine grievance contravened section 46(h) and amounted to unfair labour practice. The court followed its own prior opinion in Grace Gacheri Muriithi v Kenya Literature Bureau, holding it unfair to convert a grievance process into a disciplinary process without notice. At submissions the claimant sought compensation, and the remaining prayers were held abandoned. Judgment was entered for the claimant: a declaration of unfair termination, twelve months' gross salary for each grievant with interest, a seven-day computation filing directive, and costs against the respondent.

Key legal issues

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01

Procedural and substantive fairness of the terminations

Holding

The terminations were unfair for want of notification and hearing (section 41) and want of proof of valid reasons (section 43) of the Employment Act, 2007.

Reasoning

The reason for dismissal stated in the termination letters was either absenteeism on 5.03.2010 or instructing workers to boycott work on 25.02.2010. The respondent established neither reason. The meetings held were general grievance-management meetings, with no prior notice that the employees faced disciplinary charges that could end in termination, so no notification and hearing as required by section 41 occurred.

p. 4
02

Whether the grievants had a genuine health and safety grievance

Holding

The grievants had a valid grievance; on a balance of probabilities the staff were asked to reenter greenhouse 4 at 10.30 am, before the 10.45 am reentry time, contrary to the reentry rule.

Reasoning

The supervisor never stated the reentry time on the board or when he asked staff to reenter, whereas claimant evidence placed the eruption of the grievance at 10.30 am. The court preferred the production manager's testimony of a 10.45 am reentry time and found the staff had been asked to reenter before it. The respondent had also agreed to consultations on health and safety and to uphold proper reentry times and protective gear, and had not shown it remedied the situation.

p. 4
03

Compliance with the grievance procedure under the CBA and recognition agreement

Holding

The grievants complied with the agreed grievance procedure, and their genuine complaints could not constitute grounds for removal or punishment under section 46(h).

Reasoning

Clause 5 of the collective agreement required grievances to be raised under company grievance handling procedures, which the respondent failed to show it had made available. Clause 3 of the recognition agreement allowed employees to raise grievances with the immediate superior and appeal up the management hierarchy. The grievants followed that route by raising the wet-flowers complaint through the shop stewards to management.

p. 4
04

Remedy for unfair termination

Holding

Each grievant is entitled to twelve months' gross salary at the rate of his gross monthly salary at termination, with interest; the claimant is entitled to costs.

Reasoning

The claimant at submissions sought compensation for unfair termination, which the court treated as an abandonment of the other prayers. Applying the statutory compensation framework, the court awarded the maximum twelve months' gross salary for each grievant, with interest from judgment, and directed the claimant to file a computation of quantum within seven days for recording in court.

p. 5

Legal principles established

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  • It is an unfair labour practice to convert a grievance management process into a disciplinary process without making that intention clear to the affected employee so that he or she can mount a strong individual defence.
  • A notification of disciplinary charges must be clear that the employee is facing a case of poor performance, ill health or misconduct that may conclude in termination; general grievance meetings do not constitute notification and hearing.
  • An employee raising a genuine grievance in accordance with the agreed grievance procedure cannot have that conduct constitute a reason for removal or punishment.

Court orders

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  1. 1.A declaration that the termination of the service of the grievants by the respondent was unfair
  2. 2.The respondent to pay each of the grievants twelve months salary at the rate of their respective gross monthly salary at termination plus interest at court rates from the date of the judgment till the date of full payment
  3. 3.The claimant to file in court and serve the respondent within seven days the computation of the amount in (b) for recording the quantum in court on a convenient date to be fixed
  4. 4.The respondent to pay the costs of the case

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 36, 41(1), 41(2)(b) and (c)
  • Employment Act, 2007sections 41, 43, 46(h), 49(3), 50
  • Occupational Health and Safety Act, 2007sections 101, 110

Cases cited (1)

  • Grace Gacheri Muriithi –Versus- Kenya Literature Bureau
    (2012) eKLR
Jurisdiction invoked
Constitution Article 41 (right to fair labour practices) and the Employment Act, 2007; Industrial Court first-instance jurisdiction over a memorandum of claim

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 PLANTATION AND AGRICULTURAL WORKERS UNION V BILASHAKA FLOWERS LIMITED [2013] KEELRC 405 (KLR)", Case Analysis (2013). Industrial Cause No. 44 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/405/eng@2013-04-12

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