Universities Academic Staff Union v Maseno University [2013] KEELRC 785 (KLR)
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
#Key legal issues
#Limitation - claim by the 4th grievant dismissed 23/11/2006
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.
Under sections 14(9)(c) and (d) of the repealed Trade Disputes Act the court could not deal with a trade dispute while it was being settled, investigated or determined by other proceedings under the Act,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.
Applicable law
The Trade Disputes Act (repealed) and the repealed Employment Act (Cap 226) apply because the dismissals occurred before the commencement of the Labour Relations Act and the Employment Act 2007.
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including summary dismissals, which commenced before its commencement are to be determined in accordance with the repealed Trade Disputes Act.
Real reasons for the dismissals
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.
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.
Whether the terminations were justified
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.
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.
Remedies
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.
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.
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.The purported termination of the grievants' employment was unjustified and unfair and was converted to a normal termination
- 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.Each grievant to be issued with a certificate of service
- 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.All payments subject to statutory deductions
- 6.The respondents to pay the costs of the suit
- 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.