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ELRCDismissedCause 1169 of 2011· [2013] KEELRC 497 (KLR)

KENYA ENGINEERING WORKERS UNION V AUTO SPRING MANUFACTURERS LIMITED [2013] KEELRC 497 (KLR)

Industrial Court of Kenya
27 February 2013
JRJames Rika
1,898 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 that workers who refuse to cooperate in a workplace investigation lose the right to later complain they weren't heard, though long-serving casuals win regular employee status.

What this practically means

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Executive summary

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The Kenya Engineering Workers Union sued Auto Spring Manufacturers Limited on behalf of three members (the Grievants) whose contracts were terminated after a truck they helped load was recalled and found to contain five unauthorised spring rear main leaves. The Grievants refused to record statements during investigations, asking the employer to call in the Police instead. Gavala, a permanent employee of 19 years, was terminated on 11th April 2011 on grounds of loss of trust; the two casual employees, Maingi and Kimani, were advised not to report to work and were paid their dues. After a failed conciliation under section 69 of the Labour Relations Act, the dispute came to the Industrial Court, where the Union sought declarations of unfair termination, reinstatement of all three Grievants, or alternatively 12 months' salary compensation each. The Court declared Maingi and Kimani regular employees under section 37(4) of the Employment Act 2007 by virtue of 5 and 7 years' service. However, it found the employer had valid reasons for termination under section 44(4): reasonable and sufficient grounds to suspect the Grievants of a criminal offence against the employer's property, and their petulant refusal to obey a lawful instruction to record statements. The Court held that an employee who refuses to submit to an investigatory procedure forfeits the right to complain of lack of investigation or hearing, rejected the Conciliator's recommendations, and dismissed the claim in its totality with no order on costs.

Key legal issues

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01

Conversion of casual employees to regular employment

Holding

Maingi (5 years) and Kimani (7 years) had served long enough to be converted to regular employees

Reasoning

The Court accepted the Claimant's argument that years of service converted casual employees to regular terms. Maingi had served 5 years from March 2006 and Kimani 7 years from 2004. The Court declared them regular employees under section 37(4) of the Employment Act 2007, even though the claim itself was ultimately dismissed.

p. 3
02

Valid reason for termination

Holding

Valid reasons existed: reasonable and sufficient grounds to suspect the Grievants of a criminal offence against the employer's property, and refusal to obey a lawful instruction to record statements

Reasoning

Five extra unauthorised spring rear main leaves were found on the truck the Grievants helped load. The employer had reasonable grounds to suspect them under section 44(4)(g). Their refusal to record statements, directing the employer to call the Police instead, was a second valid ground under section 44(4)(e). The Court found the instruction lawful and within their scope to obey.

p. 3
03

Effect of refusal to co-operate with an investigation

Holding

Refusal to record statements forfeits the right to claim lack of proper investigation or hearing

Reasoning

The Grievants declined to record statements and refused to co-operate with the investigator, suggesting the Police be called instead. The Court held that an employee who refuses to submit to the investigatory and disciplinary procedure cannot later complain of lack of investigation or hearing. The Conciliator's contrary finding was rejected.

p. 4
04

The Conciliator's recommendations

Holding

The Conciliator failed to appreciate the parties' rights and obligations under the Employment Act, and the Respondent had good reason to reject the recommendations

Reasoning

The Court found the Conciliator ignored the offences committed under section 44(4) of the Employment Act 2007, and illogically faulted the investigation which the Grievants themselves had frustrated by refusing to record statements. The Respondent was commended for commuting summary dismissal to regular termination with full terminal dues.

p. 4

Legal principles established

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  • Casual employees who have served a sufficient number of years merit conversion to regular terms of employment under section 37(4) of the Employment Act 2007
  • An employee who refuses to take part in an investigatory or disciplinary procedure forfeits the right to complain that he was not properly investigated or heard
  • Employees have no justification in directing their employers on how workplace offences should be investigated

Court orders

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  1. 1.Declaration that Timothy Maingi and Evans Kimani were regular employees under section 37(4) of the Employment Act 2007
  2. 2.A finding that termination was fair
  3. 3.Claim rejected in its totality
  4. 4.No order on the costs

Authorities

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Legislation

  • Labour Relations Actsection 69
  • Employment Actsection 37 and section 37(4)
  • Employment Actsection 44(g) and section 44(4)(e) and (g)
Jurisdiction invoked
Reference of a formal trade dispute following a certificate of disagreement under section 69 of the Labour Relations Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "KENYA ENGINEERING WORKERS UNION V AUTO SPRING MANUFACTURERS LIMITED [2013] KEELRC 497 (KLR)", Case Analysis (2013). Cause 1169 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/497/eng@2013-02-27

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