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ELRCPartially AllowedCause No 2118 of 2012· [2015] KEELRC 334 (KLR)

Kenya Chemical & Allied Workers Union v Botanical Extracts (EPZ) Limited [2015] KEELRC 334 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
29 October 2015
3,227 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant union sued on behalf of its member, Hilary Waithaka, an Assistant Operator employed by the Respondent from 10th April 2007 until his summary dismissal on 11th July 2011 following a hexane chemical spillage on 22nd June 2011. The Respondent alleged the grievant refused a lawful command to write a spillage report; the union contended the dismissal was wrongful, the grievant having in fact written the report. The Respondent raised a preliminary objection on the absence of a recognition agreement, which the court rejected, holding that membership alone suffices for union representation in a dispute forum - recognition pertains to collective bargaining. On the merits, the court found that apart from a show cause letter, no hearing was conducted as required by Section 41 of the Employment Act; the grievant was not given a hearing, informed of his right to representation, or allowed to defend himself beyond the inquiry stage, rendering the dismissal unfair. The court declined reinstatement, noting the union had accepted the conciliator's recommendation to convert the dismissal to normal termination and that more than three years had elapsed. It awarded one month's notice pay (Kshs.10,000), days worked (Kshs.4,102.60), pro-rata leave (Kshs.2,153.80) and 10 months' compensation (Kshs.100,000), adopting the conciliator's recommendation. Service pay was rejected for want of evidence that the grievant was not an NSSF member. Costs of Kshs.60,000 were awarded to the Claimant, with interest on the decretal sum at court rates.

Key legal issues

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01

Locus standi of a trade union without a recognition agreement

Holding

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.

Reasoning

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.

p. 6
02

Whether the summary dismissal was lawful and procedurally fair

Holding

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.

Reasoning

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.

p. 6
03

Quantum of relief and compensation

Holding

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.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.Declaration that the dismissal of the Grievant was unfair
  2. 2.One month's salary in lieu of notice of Kshs.10,000
  3. 3.Payment for days worked and not paid of Kshs.4,102.60
  4. 4.Pro-rata leave of Kshs.2,153.80
  5. 5.Compensation of Kshs.100,000 being 10 months' salary
  6. 6.Respondent to pay Claimant's costs of the suit assessed at Kshs.60,000
  7. 7.Decretal sum to attract interest at court rates

Authorities

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Legislation

  • Constitution of Kenya 2010Article 41(1)(c)
  • Constitution of Kenya 2010Article 48
  • Employment Act 2007Sections 41, 42(1), 43, 44(3), 44(4)(c), 44(4)(d), 44(4)(e), 45, 45(2)(c)
  • Labour Relations Act 2007Sections 4, 54(1), 62(1)
  • Labour Institutions Act 2007not specified
  • Industrial Court Act 2011not specified

Cases cited (2)

  • Kenya Union of Commercial, Food and Allied Workers v Diani One Stop Supermarket
    Cause No. 1482 of 2010
  • Kenya Hotels and Allied Workers Union v The Big Five Brewers Limited
    Cause No. 391 of 2010
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

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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 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.