Kenya Chemical & Allied Workers Union v Botanical Extracts (EPZ) Limited [2015] KEELRC 334 (KLR)
The bottom line
#A Kenyan court ruled a trade union can sue for a worker without a recognition agreement, and that a show cause letter alone is not a fair hearing before dismissal.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of a trade union without a recognition agreement
The Claimant had locus standi to represent the grievant as the grievant's membership was not contested; recognition is for collective bargaining, not dispute representation, and the Respondent had accepted the union's role by conduct in meetings and conciliation.
The court relied on its prior awards in Cause No. 1482 of 2010 and Cause No. 391 of 2010, holding that membership, not a recognition agreement, is the only requirement for representation. It noted the Respondent participated in meetings and conciliation without objection, thereby accepting the union's standing by conduct. Article 41(1)(c) of the Constitution and Section 4 of the Labour Relations Act support the employee's right to union participation.
Whether the summary dismissal was lawful and procedurally fair
The dismissal was unfair because apart from the show cause letter, no hearing was conducted as required by Section 41 of the Employment Act; the grievant was denied a hearing and his right to representation.
Section 41 requires the employer to explain the reasons for termination in a language the employee understands and to hear and consider representations, with the employee entitled to be accompanied by a colleague or union representative. A show cause response is only an inquiry stage, not a hearing. The dismissal letter also invoked Section 44(4)(e), but the court found the process fell short of the statutory requirements, rendering the termination unfair.
Quantum of relief and compensation
The court adopted the conciliator's recommendation of 10 months' salary as compensation and awarded notice pay, days worked and pro-rata leave, but rejected reinstatement and service pay.
The court found it unconscionable for the claimant to seek reinstatement after accepting the conciliator's recommendation to reduce the dismissal to normal termination, and reinstatement was unavailable after more than 3 years. It adopted the 10 months' compensation as no party gave reasons to depart from it. Service pay failed for want of evidence that the grievant was not an NSSF member.
Legal principles established
#- A trade union does not need a recognition agreement with an employer to have locus standi to file a claim on behalf of a member; recognition relates to collective bargaining, not representation in dispute settlement forums.
- A show cause letter alone does not satisfy the hearing requirement of Section 41 of the Employment Act; an employer must conduct a proper hearing and inform the employee of the right to representation.
Court orders
#- 1.Declaration that the dismissal of the Grievant was unfair
- 2.One month's salary in lieu of notice of Kshs.10,000
- 3.Payment for days worked and not paid of Kshs.4,102.60
- 4.Pro-rata leave of Kshs.2,153.80
- 5.Compensation of Kshs.100,000 being 10 months' salary
- 6.Respondent to pay Claimant's costs of the suit assessed at Kshs.60,000
- 7.Decretal sum to attract interest at court rates
- Jurisdiction invoked
- Jurisdiction as the competent labour court upon referral following conciliation under Section 62(1) of the Labour Relations Act and issuance of a Certificate of disagreement
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Chemical & Allied Workers Union v Botanical Extracts (EPZ) Limited [2015] KEELRC 334 (KLR)", Case Analysis (2015). Cause No 2118 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/334/eng@2015-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.