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ELRCPartially AllowedCause 1933 of 2011· [2013] KEELRC 462 (KLR)

KENYA PLANTATION AND AGRICULTURAL WORKERS UNION v PRIMA ROSA FLOWERS LIMITED [2013] KEELRC 462 (KLR)

Industrial Court of Kenya
15 March 2013
JRJames Rika
764 words in judgment
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The bottom line

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A Kenyan flower farm was ordered to pay 12 months' salary for firing a union official without a disciplinary hearing, even though the strike was declared illegal.

What this practically means

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Executive summary

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The Claimant Union brought a dispute on behalf of its Grievant, Evans Obongo Ratemo, a Chief Shop Steward at the Respondent flower company, who was directed on 4th November 2011 to clear and vacate company premises after he called an employees' meeting on 24th October 2011. An interlocutory application seeking to restrain lockout or dismissal was dismissed on 27th July 2012 because the letter of summary dismissal predated the application and the law does not allow interim reinstatement. The main dispute proceeded unopposed on 4th December 2012, the Respondent having been duly served and failing to attend. The Court held that Sections 43 and 45 of the Employment Act 2007 require employers to give valid reasons for termination; the Respondent's assertion that a strike of 14th November 2011 was declared illegal by the Ministry of Labour did not discharge its statutory obligation, as a declaration of illegality is only a starting point for a disciplinary hearing with specific charges and an opportunity to be heard, all of which were absent. Reinstatement was refused as unsuitable because the perception that the Grievant whipped up discord made the restoration of mutual trust impracticable. The Court awarded 12 months' salary as compensation for unfair termination plus all terminal benefits under the applicable CBA as at 4th November 2011, payable within 30 days, with no order as to costs.

Key legal issues

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01

Validity of reason for termination under Sections 43 and 45 of the Employment Act 2007

Holding

The dismissal was unfair; the employer's assertion of an illegal strike was insufficient to discharge its statutory burden.

Reasoning

Sections 43 and 45 require valid reason for termination. The employer's mere assertion that a strike was declared illegal by the Ministry of Labour does not discharge its obligation. Such a declaration is only a starting point, after which the employer must hold a disciplinary hearing, make specific charges and hear the employee's explanation before deciding to terminate. These procedures were completely absent.

p. 2
02

Suitability of reinstatement as a remedy

Holding

Reinstatement and re-engagement were refused as unsuitable given the breakdown of mutual trust.

Reasoning

The Grievant was a Chief Shop Steward who summoned the meeting that may have led to the strike. The lingering perception that he whipped up discord meant he could not be a trusted employee, and the qualities of mutual trust and confidence - key pillars of the employment relationship - could not easily be reconstructed.

p. 2

Legal principles established

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  • An employer must follow minimum statutory disciplinary procedures - charges, hearing and employee response - before termination; a declaration of illegality of a strike is only a starting point.
  • The law does not allow for interim reinstatement where dismissal has already occurred.
  • Where a respondent keeps out of proceedings, it cannot discharge its obligations under Sections 43 and 45 of the Employment Act.

Court orders

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  1. 1.Termination of the Grievant's contract of employment was unfair
  2. 2.The Respondent shall pay to the Grievant 12 months' salary in compensation
  3. 3.The Respondent shall pay to the Grievant all terminal benefits under the CBA as at 4th November 2011
  4. 4.All the payments shall be made in full within 30 days of the delivery of this Award
  5. 5.No order as to costs

Authorities

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Legislation

  • Employment Act 2007Sections 43 and 45
Jurisdiction invoked
Industrial Court jurisdiction under the Employment Act 2007

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 PRIMA ROSA FLOWERS LIMITED [2013] KEELRC 462 (KLR)", Case Analysis (2013). Cause 1933 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/462/eng@2013-03-15

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