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ELRCPartially AllowedIndustrial Cause (as stated in judgment; applications dated 2nd December 2011, 25th January 2012, 31st January 2012 and 20th August 2013)· [2013] KEELRC 796 (KLR)

Aviation and Allied Workers Union v Kenya Airways Limited [2013] KEELRC 796 (KLR)

Industrial Court of Kenya
16 September 2013
9,892 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Industrial Court (M. Mbaru, Judge) disposed of four interlocutory applications arising from a dispute between the Aviation and Allied Workers Union (AAWU) and Kenya Airways over disciplinary proceedings against union officials, principally the grievant Perpetua Mponjiwa, the union's National Chairperson. The dispute originated in a press conference of 18th November 2011 at which union officials criticised the airline's management and its low-cost subsidiary venture. The union obtained ex-parte orders on 6th December 2011 restraining the disciplinary proceedings arising from the press conference. The respondent then issued a fresh show cause letter on 17th January 2012 relating to absenteeism, insubordination and training matters, and dismissed the grievant on 20th January 2012. The union's application of 25th January 2012 led to orders of 26th January 2012 declaring the dismissal null and void; the respondent obtained a stay of those orders on 1st February 2012 and sought their review. The grievant later filed her own application seeking lifting of the stay and delivery of the long-delayed ruling. The court framed three issues: the scope of the December 2011 orders, the employer's right to commence new disciplinary proceedings, and whether the respondent was in contempt. The court held that the interim orders were specific to the press-conference proceedings and not futuristic; that an employer retains the right to discipline employees, including union officials, for other misconduct subject to fair process; and that the second disciplinary process was distinct, so no contempt arose. The court vacated the orders of 26th January 2012, preserved the grievant in employment pending the disciplinary process, dismissed the grievant's 2013 application, and ordered each party to bear its own costs.

Key legal issues

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01

Scope of the interim orders of 6th December 2011

Holding

The orders were specific to the disciplinary proceedings arising from the press conference of 18th November 2011 and did not restrain future disciplinary proceedings for different misconduct

Reasoning

The court examined the show cause letters of 25th November 2011 and 17th January 2012 and found they related to distinct sets of facts - the press conference versus absenteeism, training and duty roster issues. Since the second allegations had not been formulated when the orders issued, the restraint could not extend to them; blanket futuristic interim orders would misapply the principle underlying interim relief.

p. 13
02

Employer's right to commence new disciplinary proceedings

Holding

The employer was entitled to commence disciplinary proceedings for other misconduct notwithstanding union membership or office, subject to fair process

Reasoning

Reading the Labour Relations Act, the Employment Act, Article 41 of the Constitution and ILO Conventions together, union officials may carry out lawful union activities, but these protections do not provide sanctuary from legitimate disciplinary processes for non-union misconduct. The employer must nonetheless accord due process, fair hearing and natural justice.

p. 13
03

Whether the respondent was in contempt of the orders of 6th December 2011

Holding

No contempt was established because the second disciplinary process related to separate and distinct misconduct

Reasoning

The claimant sought to have the dismissal of 20th January 2012 declared null and void and contempt proceedings against two officers. The court found the show cause letter of 17th January 2012 and subsequent dismissal formed distinct disciplinary proceedings not covered by the December orders, so the dismissal was not a breach. Grievance should be pursued through the respondent's review and appeal mechanisms.

p. 15

Legal principles established

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  • The court will intervene in an administrative disciplinary process only where the process offends fairness or due process, breaches agreed procedures, or would result in manifest injustice, and normally not where internal remedies exist and have not been exhausted
  • Interim orders made by the court are confined to the proceedings and matters complained of at the time and cannot operate as blanket restraints on future, unrelated disciplinary action
  • A unionised employee, including a union official, remains subject to the employer's disciplinary process for misconduct outside lawful union activities

Court orders

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  1. 1.With regard to the claimant's application dated 2nd December 2011, the grievant shall remain in the employment and duty of the respondent until the conclusion of the disciplinary process occasioning the commencement of this cause unless otherwise lawfully disciplined on account of substantially different and proven misconduct
  2. 2.The orders issued on 26th January 2012 are hereby vacated subject to the claimant being permitted to apply review or appeal mechanisms available to address any grievance outstanding with due regard to the applicable disciplinary procedures of the respondent
  3. 3.The application dated 20th August 2013 is hereby dismissed
  4. 4.Parties to bear their own costs of the application

Authorities

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Legislation

  • Industrial Court Actsections 12, 13, 16
  • Employment Actsections 9, 10, 35, 46
  • Labour Relations Actsections 4, 5(2)(c), 8(1)(b), 31
  • Constitution of Kenya, 2010Articles 2(5), 2(6), 41, 50(1), 51
  • Industrial Court Procedure RulesRules 16(6), 27, 32(1)
  • Judicature Actsections 8 and 9 (Rules of the High Court)
  • ILO Convention No. 135Article 1
  • ILO Convention No. 87Article 2
  • ILO Convention No. 98Article 2
  • ILO Convention 158 / 153
  • ILO Declaration of Fundamental Principles and Rights at Work

Cases cited (4)

  • Giella versus Cassman Brown & Co. Limited
  • Elizabeth Washeke and 62 Others versus Airtel Networks (K) Ltd et al
    Industrial Cause No. 1972 of 2012
  • Miguna Miguna – versus- Permanent Secretary, Office of the Prime Minister and the Attorney General
    (2011) eKLR
  • Muthusi and 2 others -versus- Gathogo and 2 others
    (1990) KLR 90
Jurisdiction invoked
Section 12 of the Industrial Court Act; Article 41 of the Constitution

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, "Aviation and Allied Workers Union v Kenya Airways Limited [2013] KEELRC 796 (KLR)", Case Analysis (2013). Industrial Cause (as stated in judgment; applications dated 2nd December 2011, 25th January 2012, 31st January 2012 and 20th August 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/796/eng@2013-09-16

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