Aviation and Allied Workers Union v Kenya Airways Limited [2013] KEELRC 796 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Scope of the interim orders of 6th December 2011
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
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.
Employer's right to commence new disciplinary proceedings
The employer was entitled to commence disciplinary proceedings for other misconduct notwithstanding union membership or office, subject to fair process
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.
Whether the respondent was in contempt of the orders of 6th December 2011
No contempt was established because the second disciplinary process related to separate and distinct misconduct
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.
Legal principles established
#- 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
#- 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.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.The application dated 20th August 2013 is hereby dismissed
- 4.Parties to bear their own costs of the application
- Jurisdiction invoked
- Section 12 of the Industrial Court Act; Article 41 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.