Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause Number 1113 of 2012· [2014] KEELRC 384 (KLR)

Kenya Chemical And Allied Workers Union v National Cement Company Limited [2014] KEELRC 384 (KLR)

Industrial Court of Kenya
2 July 2014
JRJames Rika
3,414 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

Kenya's Industrial Court ruled employers cannot hide behind probation clauses or contractors to avoid proving fair reasons for firing long-serving casual workers.

What this practically means

#

Executive summary

#
The Claimant Union sued on behalf of two grievants, Geoffrey Nzioka (Welder) and Joseph Mbuvi Muli (Fitter), whose contracts with National Cement Company Limited were terminated on 21st March 2011, alleging the terminations were for recruiting members into the Claimant Union. The Respondent maintained the grievants had served only three months' probation under fixed term contracts signed in January 2011, that termination during probation required only 7 days' notice or wages in lieu under Section 42 of the Employment Act, and that the grievants were previously employed not by the Respondent but by an independent contractor, Asthan. It also objected to the Claimant Union's standing, citing its recognition agreement with the Kenya Quarry and Mine Workers Union. Rika J held that a trade union need not hold a recognition agreement to represent its members in individual disputes; recognition under Section 54 of the Labour Relations Act concerns only collective bargaining. The Court found the grievants were the Respondent's casual employees - no evidence of the Asthan contract was produced - who merited conversion to regular employment under Section 37(1)(a) when the Respondent went into production, without probation. Probation was never intended for old employees, so the Section 42 defence failed. The Respondent discharged none of its exclusive burden under Sections 43 and 45 to show valid reasons for termination, and termination was declared unfair. Reinstatement was refused as impracticable after over three years, and the vague prayer for 'full benefits' was also declined. The Court awarded notice pay and compensation mirroring the Conciliator's rejected recommendations, ordered release of certificates of service, and made no order on costs.

Key legal issues

#
01

Trade union standing to represent individual employees

Holding

The Claimant Union was properly before the Court; recognition is confined to collective bargaining and does not oust representation of individual members by a union of their choice

Reasoning

Recognition under Section 54 of the Labour Relations Act grants a union the right to act as sole collective bargaining agent, focused on collective rights. Legal representation in an individual dispute is a separate relationship. Article 41 of the Constitution and Section 4 of the Labour Relations Act protect associational freedoms, allowing employees to belong to and enjoy the benefits of a union of their choice, including legal representation in court.

p. 4
02

Existence of employment relationship with the Respondent during casual phase

Holding

The Grievants were casual employees of the Respondent, not of the Independent Contractor Asthan

Reasoning

No document relating to the alleged independent contract was availed. The Grievants performed roles (welding, fitting) relevant both during plant construction and after, and were retained. They were paid through the Respondent, which determined and managed their rates of remuneration - unlikely if they were the contractor's employees. Continuous employment in the same enterprise and roles followed.

p. 4
03

Probation and Section 42 defence

Holding

Probation was not available to the Grievants; they merited regular employment without probation, so Section 42 protections for probationary employees could not be invoked

Reasoning

The Grievants had served continuously (6 months and 1½ years respectively) before signing the fixed term contracts. Subjecting old employees to probation was neither reasonable nor fair. Upon conversion they should have been regular employees without a probation precondition, so termination did not enjoy the latitude Section 42 affords probationary contracts.

p. 5
04

Fairness of termination

Holding

Termination was unfair; the Respondent proved no valid reason for termination

Reasoning

Neither of the two proffered grounds was supported by evidence: no performance records supported the alleged unsatisfactory services, and the Claimant produced no material of victimisation for trade union activities. However, the employer bears the exclusive burden under Sections 43 and 45 of demonstrating the reasons for termination, and failed to do so.

p. 5
05

Remedies

Holding

Reinstatement declined; compensation awarded substantially matching the Conciliator's rejected recommendations

Reasoning

Reinstatement was impracticable after more than 3 years. The alternative prayer for unspecified 'full benefits' was too vague for an executable, final decision. The Court adopted the Conciliator's reasonable recommendations: notice pay, compensation of 1 month's gross salary for Nzioka and 2 months for Muli, plus certificates of service.

p. 5

Legal principles established

#
  • A trade union without a recognition agreement with an employer may still represent its members in individual disputes filed in court; recognition concerns collective bargaining rights only
  • Employees may belong to a union other than the recognised union and be represented by it in individual disputes, as a matter of associational freedom
  • Casual employees engaged continuously for over one month should be converted to regular employment under Section 37(1)(a) of the Employment Act when the employer goes into production, without probation
  • The employer bears the exclusive burden of proving valid reasons for termination under Sections 43 and 45 of the Employment Act

Court orders

#
  1. 1.Declaration that termination of the Grievants' contracts of employment was unfair
  2. 2.Respondent to pay Geoffrey Nzioka Kshs. 19,605 (1 month basic salary notice pay Kshs. 8,700 plus 1 month gross salary compensation Kshs. 10,905) within 30 days
  3. 3.Respondent to pay Joseph Muli Kshs. 36,496 (1 month basic salary notice pay Kshs. 10,520 plus 2 months' gross salary compensation Kshs. 25,976) within 30 days
  4. 4.Respondent may retrieve sums deposited with the Labour Office upon satisfying the Award
  5. 5.Certificates of service to be released to the Grievants forthwith
  6. 6.No order on costs

Authorities

#

Legislation

  • Employment ActSection 42
  • Employment ActSections 43 and 45
  • Employment ActSection 37(1)(a)
  • Labour Relations ActSection 54
  • Labour Relations ActSection 4
  • Industrial Court Act3-year ceiling on reinstatement
  • Regulation of Wages [General] [Amendment] Order 2010
  • Constitution of KenyaArticle 41
Jurisdiction invoked
Industrial Court Act 2011 / Employment Act 2007 dispute referred under the Industrial Court's jurisdiction (Issue in dispute: unfair and unlawful termination)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (7)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Kenya Chemical And Allied Workers Union v National Cement Company Limited [2014] KEELRC 384 (KLR)", Case Analysis (2014). Cause Number 1113 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/384/eng@2014-07-02

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