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ELRCPartially AllowedCause No. 1983 of 2015 (Amended Notice of Motion dated 2nd October 2015, amended 22nd October 2015)· [2015] KEELRC 156 (KLR)

Kenya Airways Pilots Association v Kenya Airways Limited [2015] KEELRC 156 (KLR)

Employment and Labour Relations Court
25 November 2015
3,690 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya Airways pilots must sign the company's ethics code, but the airline must also restore their buddy pass benefits pending a full hearing.

What this practically means

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Executive summary

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The Claimant, a union representing Kenya Airways pilots, moved the Court by Amended Notice of Motion seeking to prohibit the Respondent from applying or demanding execution of its revised Code of Business Conduct and Ethics by its members, to compel re-opening of the buddy pass program registration for 2015, and to direct negotiation of the Code's terms before implementation. The union argued the Code altered terms and conditions of service protected by the CBA and that the Respondent coerced members into signing by conditioning discretionary benefits, notably the buddy pass program, on signing. The Respondent countered that the Code was a corporate governance tool of general application, did not amend the CBA, that contractual rights prevail over the Code in any conflict, and that requiring all employees to sign avoided discrimination against the 87% who had signed. The Court found the Respondent had admitted the replacement Code was not preceded by negotiations as is the norm, and that the Code forms part of staff rules and regulations which fall within negotiable items under the CBA. This established a prima facie case. The Court held that using the Code to withhold benefits from disobedient or uncooperative employees bypassed agreed disciplinary procedures and amounted to discriminatory practice, while declining to decide discrimination allegations before full trial. Applying American Cyanamid v Ethicon and the Giella principles, and on a balance of convenience, the Court issued interim orders: members to sign the Code unconditionally, the buddy pass registration to be re-opened, both within 7 days, with liberty to return to Court on non-compliance, a priority hearing date, and costs in the motion. The substantive dispute was left for full hearing.

Key legal issues

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01

Whether failure to negotiate the Code with the union establishes a prima facie case

Holding

Yes. The Respondent admitted the replacement Code was not preceded by negotiations, and the Code touches on fundamental terms and conditions of service, which under the CBA fall within negotiable items.

Reasoning

The Court noted the CBA requires discussion before implementation of staff rules that alter terms of service, and the Respondent's own affidavit acknowledged the Code was not preceded by negotiations as is the norm of industrial relations practice and as acknowledged in the Recognition Agreement. The Respondent also admitted the Code binds employees as part of staff rules and regulations, placing it within 'other generally accepted terms and conditions of employment'. This concession founded the finding of a prima facie case.

p. 4
02

Whether withholding discretionary benefits for non-signing of the Code is discriminatory

Holding

Using the Code to withhold benefits from disobedient or uncooperative employees bypasses agreed disciplinary mechanisms and amounts to discriminatory practice; discrimination concerns raised by both parties require evidence at the full hearing.

Reasoning

The Court held that disobedience and insubordination are disciplinary matters already regulated under the CBA and HR policy. Using the Code to separate such employees for different treatment amounts to discrimination. The Court added that no Code, CBA or policy document should set aside classes of employees, including on grounds of sexual orientation, for different treatment without justifiable cause, with due regard to Article 27 and section 5 of the Employment Act.

p. 5
03

Whether the interlocutory relief sought should issue

Holding

Interim orders issued on a balance of convenience: members to sign the Code unconditionally and the buddy pass registration to be re-opened within 7 days, with substantive issues deferred to full hearing.

Reasoning

Applying American Cyanamid v Ethicon and the Giella principles via Kenya Railways v Nguti, the Court found a prima facie case but declined to decide the merits. It crafted complementary interim orders balancing the parties' interests: unconditional signing of the Code paired with re-opening of buddy pass registration, with liberty to return to Court on non-compliance and an expedited hearing.

p. 6

Legal principles established

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  • Where a provision of a workplace Code conflicts with an employee's contractual rights, the contractual rights prevail; a Code forms part of staff rules and regulations and its imposition may engage the duty to negotiate terms and conditions of employment
  • Withholding benefits or privileges from employees for failing to sign a workplace Code, rather than following agreed disciplinary procedures under the CBA, amounts to discriminatory practice
  • The Giella v Cassman Brown principles for interlocutory injunctions, including that mandatory injunctions are awarded sparingly, apply to mandatory and prohibition injunctions in employment disputes

Court orders

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  1. 1.The Claimant members shall proceed and sign the Code of Business Conduct and Ethics unconditionally as required by the respondent
  2. 2.The Respondent shall proceed to re-open registration of the Claimant members' nominee for the buddy pass program for 2015
  3. 3.The above (a) and (b) shall be undertaken within the next 7 calendar days from the date herein inclusive
  4. 4.The above (a), (b) and (c) being mutually complementary, where any party does not comply, the other shall be at liberty to move the Court as appropriate
  5. 5.A hearing date shall be allocated on priority basis
  6. 6.Costs shall be in the motion

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 12(3)
  • Employment and Labour Relations Court (Procedure) RulesRule 16
  • Employment ActSection 5 and Section 5(3)(b)
  • Penal CodeSection 162
  • Civil Aviation Actcompliance provisions (unspecified)
  • Constitution of KenyaArticle 41; Article 27

Cases cited (4)

  • American Cyanamid versus Ethicon
    (1975) A.C.
  • Esther Mbinya Musau versus National Bank of Kenya Limited
    Cause No. 989 of 2015
  • Kenya Railways Corporation versus Thomas Nguti & Others
    Civil Appeal No. 210 of 2004
  • Giella versus Cassman Brown & Co. Ltd
    1978 EA 358
Jurisdiction invoked
Section 12(3) of the Employment and Labour Relations Court Act and Rule 16 of the Court Procedure Rules

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 Airways Pilots Association v Kenya Airways Limited [2015] KEELRC 156 (KLR)", Case Analysis (2015). Cause No. 1983 of 2015 (Amended Notice of Motion dated 2nd October 2015, amended 22nd October 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/156/eng@2015-11-25

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