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ELRCPartially AllowedNot stated in the judgment as extracted· [2014] KEELRC 1084 (KLR)

Kenya Scientific Research International Technical & Allied Institutions Workers Union v George Aertssen & another [2014] KEELRC 1084 (KLR)

Industrial Court of Kenya
17 June 2014
1,364 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court ruled that employers cannot fire workers merely for facing criminal charges without a fair hearing, awarding two guards compensation.

What this practically means

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Executive summary

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The Kenya Scientific Research International Technical and Allied Workers Union filed a claim on 21 October 2011 on behalf of two members, Joshua Otieno Odhiambo and Rashid Sadi Khamisi, night guards allegedly employed by the respondents from April 2002. The grievants were arrested on 30 June 2009 over stolen gate valves and charged with stealing by servant and alternatively failing to prevent a felony. They were acquitted under Section 215 of the Criminal Procedure Code. When they sought to return to work, the respondents denied them access, having replaced them. The union reported a trade dispute, conciliation failed, and the matter came to court claiming terminal benefits and reinstatement. The respondents argued the grievants absconded, were not union members, and were not entitled to service pay or overtime. The court framed three issues and found the grievants were employees under written service agreements; that being charged in court did not warrant automatic termination, and their replacement without a hearing under Section 41 of the Employment Act or one month's notice amounted to unfair termination. Reinstatement was refused as more than three years had elapsed under Section 12 of the Industrial Court Act. The court awarded underpayments computed against Legal Notices 38 of 2006 and 70 of 2009, notice pay, severance pay, and twelve months' salary compensation, totalling Ksh 161,146 for Odhiambo and Ksh 162,346 for Khamisi. Leave, overtime and holiday pay were denied as unproved. The respondents were ordered to meet the costs of the suit. Judgment delivered by Hellen Wasilwa, Judge, on 17 June 2014.

Key legal issues

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01

Whether the grievants were employees of the respondents and on what terms

Holding

The grievants proved employment through service agreements running from 2006 to 2009, with monthly salaries and one-month termination notice terms.

Reasoning

The court examined the exhibited service agreements for both grievants, covering 1st December 2006 to 1st January 2009 and a final one-year contract from 1st January 2009. The agreements provided salaries of Ksh 4,500 and Ksh 5,000 respectively plus a free house, and permitted termination on one month's notice except for gross misconduct. The court found no mention of terminal benefits at contract expiry.

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02

Whether the respondents unfairly terminated the grievants' employment

Holding

The grievants were unfairly terminated; their replacement while criminal charges were pending amounted to technical termination without hearing or notice.

Reasoning

Although the respondents contended the grievants absconded after arrest, the respondents' own witness confirmed they were replaced because the farm could not be without a guard. The last contract effectively terminated in June 2009 when the grievants were arrested. They received no termination notices, no hearing under Section 41 of the Employment Act, and no one month's notice or salary in lieu. Acquittal under Section 215 of the CPC confirmed they were innocent.

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03

Whether the grievants are entitled to the prayers sought

Holding

Reinstatement refused as out of time; underpayment, notice pay, severance pay and 12 months' compensation awarded; leave, overtime and holiday pay denied for want of proof.

Reasoning

The court applied Legal Notice No. 38 of 2006 (minimum wage Ksh 5,796) and Legal Notice No. 70 of 2009 (Ksh 6,839) to compute underpayments for 24 months and two further months in 2009. Reinstatement was barred by the three-year limit under Section 12 of the Industrial Court Act. Twelve months' salary compensation for wrongful termination was awarded, and leave/overtime claims failed as unproved.

p. 3

Legal principles established

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  • Being charged in a criminal court does not automatically warrant termination of employment; an employee is entitled to a hearing under Section 41 of the Employment Act before termination.
  • Replacing an employee while criminal charges are pending amounts to technical termination without notice, entitling the employee to notice pay or salary in lieu.

Court orders

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  1. 1.Payment of underpayment arrears of Ksh 42,239 to Joshua Otieno Odhiambo and Ksh 43,439 to Rashid Khamisi
  2. 2.Notice pay of Ksh 7,864.85 to each claimant
  3. 3.Severance pay of Ksh 24,520 for each claimant
  4. 4.12 months' salary compensation for wrongful termination of Ksh 94,387.2 to each claimant, making totals of Ksh 161,146 for Joshua Otieno Odhiambo and Ksh 162,346 for Rashid Khamisi
  5. 5.Respondents to meet the costs of the suit

Authorities

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Legislation

  • Penal CodeSection 281
  • Penal CodeSection 392
  • Criminal Procedure CodeSection 215
  • Employment ActSection 41
  • Industrial Court ActSection 12
  • Legal Notice No. 38 of 2006Minimum wage Ksh 5,796
  • Legal Notice No. 70 of 2009Minimum wage Ksh 6,839
Jurisdiction invoked
Section 12 of the Industrial Court Act (jurisdiction including reinstatement within 3 years of termination)

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, "Kenya Scientific Research International Technical & Allied Institutions Workers Union v George Aertssen & another [2014] KEELRC 1084 (KLR)", Case Analysis (2014). Not stated in the judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1084/eng@2014-06-17

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