Kenya Plantation & Agricultural Workers Union v Sotik Highlands Tea Estate Limited [2013] KEELRC 757 (KLR)
The bottom line
#Kenya's Industrial Court refused to stop a tea company's dismissals, ruling workers who join an unprotected strike break their contracts and risk losing their jobs.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to injunctive/indulactory orders restraining termination and lock-out
The application was dismissed; the circumstances did not warrant the orders sought
The court found the parties' versions contradictory and applied the balance of probabilities. It accepted the respondent's account that the workers engaged in an illegal, unprotected strike, ignored warnings and refused to yield to the disciplinary process. Relying on precedent that dismissal following a prohibited strike is lawful, the court held that granting injunctions would damage industrial relations and instead directed a priority hearing of the memorandum of claim with maintenance of industrial peace.
Legality of dismissal following an unprotected strike
Employees who participate in a prohibited strike breach their contracts and are liable to dismissal; a go-slow is a strike
Adopting the authority in Kakuzi Limited, the court endorsed the position that under section 80(1) of the Labour Relations Act 2007 grievants who participate in a prohibited strike breach their contracts of service and are liable to disciplinary action including dismissal. A go-slow disrupts normal operations and there is no distinction between a go-slow and a full strike. The respondent's dismissals under clause 25 of the CBA were therefore treated as in accordance with the law.
Legal principles established
#- Where the parties' accounts are totally incongruent, the matter is decided on a balance of probabilities
- Participation in a prohibited (unprotected) strike is a breach of contract of service justifying dismissal, and a go-slow is treated as a strike
- Strikes are a weapon of last resort, reserved for major grievances and only after all other dispute resolution avenues have failed
Court orders
#- 1.The application is dismissed with no orders as to costs
- 2.The memorandum of claim in respect of the issues in dispute be heard on a priority basis
- 3.The parties in the meantime are ordered to maintain industrial peace pending determination of the issues in dispute
- Jurisdiction invoked
- Industrial Court jurisdiction over employment and labour disputes (Employment Act No. 11 of 2007; Labour Relations Act 2007 invoked by the parties)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Plantation & Agricultural Workers Union v Sotik Highlands Tea Estate Limited [2013] KEELRC 757 (KLR)", Case Analysis (2013). Notice of Motion dated 14th June 2012 (Industrial Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/757/eng@2013-07-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.