Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedMemorandum of Claim filed 18/12/2009· [2013] KEELRC 785 (KLR)

Universities Academic Staff Union v Maseno University [2013] KEELRC 785 (KLR)

Industrial Court of Kenya
18 September 2013
8,658 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~35 min to read original · ~4 min brief

The bottom line

#

Maseno University lecturers fired for joining the 2006 UASU strike won compensation and terminal benefits, though reinstatement came too late.

What this practically means

#

Executive summary

#
UASU, a registered trade union with a recognition agreement with Maseno University, claimed on behalf of five academic staff members (Prof. Adhiambo Odhuno, Dr. Mary Goretti Kariaga, Dr. Billy G. Ng'ong'ah, Prof. Inyani K. Simala and Mr. Elvestone C. Zenge Wang'ombe) who were dismissed following the nationwide UASU lecturers' strike of October-November 2006. The university defended the terminations as based on gross misconduct, neglect of duty, professional incompetence, an unsurrendered imprest, and lack of qualifications. The court framed five issues: limitation, applicable law, the real reasons for dismissal, justification, and remedies. It held the claim was not time barred because the dispute was within statutory conciliation until 28th July 2009; that the repealed Trade Disputes Act and Employment Act (Cap 226) governed; that all five dismissals were in truth triggered by participation in the strike and union activities, with performance grounds being pretexts or cover-ups; and that the terminations were unjustified and unfair under ILO standards on freedom of association, the Minister's declaration of illegality having no force of law. The 4th grievant was dismissed without any hearing. Reinstatement was refused because more than three years had elapsed, but the court converted the terminations to normal terminations and awarded each grievant 12 months' salary as compensation, a certificate of service, and terminal benefits at 15 days' pay per year worked, subject to statutory deductions, with costs to the grievants. Judgment delivered by Hellen Wasilwa, Judge, on 18th September 2013.

Key legal issues

#
01

Limitation - claim by the 4th grievant dismissed 23/11/2006

Holding

The claim is not time barred; while the dispute was in conciliation the court could not take cognisance of it, so the grievant could not have filed before the certificate of disagreement issued on 28/7/2009.

Reasoning

Under sections 14(9)(c) and (d) of the repealed Trade Disputes Act the court could not deal with a trade dispute while it was being settled, investigated or determined by other proceedings under the Act, including conciliation under section 6. The conciliator only completed the investigation and issued a certificate of disagreement on 28th July 2009, and the claim was filed promptly on 18th December 2009. Filing before that date was therefore impossible.

p. 8
02

Applicable law

Holding

The Trade Disputes Act (repealed) and the repealed Employment Act (Cap 226) apply because the dismissals occurred before the commencement of the Labour Relations Act and the Employment Act 2007.

Reasoning

The Employment Act 2007 came into operation on 2nd June 2008, after the grievants' contracts had been determined, and the Labour Relations Act commenced on 26th October 2007 repealing the Trade Disputes Act. Clause 4 of the Fifth Schedule to the Labour Relations Act provides that matters, including summary dismissals, which commenced before its commencement are to be determined in accordance with the repealed Trade Disputes Act.

p. 8
03

Real reasons for the dismissals

Holding

All five grievants were dismissed for reasons related to their participation in the UASU strike; the performance and misconduct grounds advanced by the respondent were a cover-up or pretexts.

Reasoning

The court examined each grievant: no prior evidence of incompetence existed for the 1st grievant; the 2nd and 3rd acted in their capacities as union officials; the 4th was dismissed without any hearing; and the 5th grievant's performance shortcomings were not acted upon for six years until the strike. The court concluded the terminations were triggered by the strike called by UASU on 22nd September 2006.

p. 10
04

Whether the terminations were justified

Holding

The terminations were unjustified and unfair; participation in union activities and a strike is not a valid reason for dismissal under ILO standards, and the 4th grievant was denied a hearing.

Reasoning

Relying on the ILO Committee of Experts' survey on protection against unjustified dismissal, union membership, participation in union activities and strike participation do not constitute valid reasons for termination. The declaration of the strike as illegal by the Minister and the university infringed freedom-of-association principles and had no force of law, and no evidence showed the court order had been brought to the grievants' notice. The 4th grievant was never heard before dismissal, contrary to ILO Convention 158 Article 7 and Article 50(1) of the Constitution.

p. 12
05

Remedies

Holding

Reinstatement refused as beyond the three-year window in the Industrial Court Act 2011; instead each grievant was awarded 12 months' salary as compensation, a certificate of service, and terminal benefits at 15 days' pay per year worked, subject to statutory deductions.

Reasoning

Under section 15(1) of the repealed Trade Disputes Act the court could order reinstatement or compensation not exceeding twelve months' monetary wages. Section 12(3) of the Industrial Court Act 2011 limits reinstatement orders to dismissals within three years. Since the dismissals occurred in 2006/2007, reinstatement was unavailable, and the court awarded compensation and terminal benefits instead.

p. 13

Legal principles established

#
  • A termination of employment triggered by an employee's participation in a trade union strike is anti-union discrimination and does not constitute a valid reason for dismissal under ILO standards, notwithstanding that Kenya has not ratified ILO Convention 158.
  • A declaration by a Minister for Labour or heads of public institutions that a strike is illegal does not have the force of law; responsibility for declaring a strike illegal should lie with an independent body.
  • An employee cannot be expected to sign a return-to-work commitment unilaterally where the strike was called by the union nationally and only the union could call it off.
  • Where a dismissal is more than three years old, the Industrial Court will not order reinstatement but will award compensation capped at twelve months' monetary wages.

Court orders

#
  1. 1.The purported termination of the grievants' employment was unjustified and unfair and was converted to a normal termination
  2. 2.The respondents to pay each grievant 12 months' salary as compensation for unlawful termination (1st: Ksh 1,418,988; 2nd: Ksh 1,260,600; 3rd: Ksh 1,260,600; 4th: Ksh 1,418,988; 5th: Ksh 1,240,656)
  3. 3.Each grievant to be issued with a certificate of service
  4. 4.Each grievant entitled to terminal benefits calculated at 15 days' pay for each year worked up to the date of judgment, totalling Ksh 2,542,353.50; Ksh 2,048,475.00; Ksh 1,812,112.50; Ksh 2,305,855.50 and Ksh 2,119,454.00 respectively
  5. 5.All payments subject to statutory deductions
  6. 6.The respondents to pay the costs of the suit

Authorities

#

Legislation

  • Labour Relations ActFifth Schedule, clause 4
  • Trade Disputes Act (Cap 234, repealed)Section 14(9)(c); Section 14(9)(d); Section 6; Section 15(1)
  • Employment Act 2007
  • Employment Act (Cap 226, repealed)
  • Industrial Court Act 2011Section 12(3)
  • Constitution of Kenya 2010Article 50(1)
  • University Act (CAP 200D Laws of Kenya)
  • Maseno University Act 2003Section 25
  • Labour Relation Act 2007
  • ILO Convention 158Article 7
  • Terms of Service for Academic Staff of Maseno UniversityArticle 25.2.1(b); Article 25.2.1(c)
Jurisdiction invoked
Trade Disputes Act (Cap 234, repealed), read with the Industrial Court Act 2011; the claim was filed on a certificate of disagreement issued after conciliation under s.14(9)(c) and (d)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Universities Academic Staff Union v Maseno University [2013] KEELRC 785 (KLR)", Case Analysis (2013). Memorandum of Claim filed 18/12/2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/785/eng@2013-09-18

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