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ELRCPartially AllowedCause Number 222 'A' of 2013· [2015] KEELRC 666 (KLR)

Kenya Union Of Commercial, Food,and Allied Workers [Kucfaw] v Mombasa Water Supply & Sanitation Company & another [2015] KEELRC 666 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
31 July 2015
JRJames Rika
4,468 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled three water company workers were unfairly dismissed because their employer could not prove bribery allegations, awarding each 10 months' salary.

What this practically means

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Executive summary

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The Claimant Union brought this claim on behalf of three grievants summarily dismissed on 12th March 2012 by the 1st Respondent, Mombasa Water Supply and Sanitation Company, on allegations of soliciting and receiving money from water customers through M-pesa to facilitate payment or reconnection of water bills. The grievants had been deployed through the water sector reforms from the National Water Conservation and Pipeline Corporation to the 2nd Respondent, Coast Water Services Board, and thence to the 1st Respondent. The Court framed four questions: joinder of the 2nd Respondent, validity of reason for dismissal, fairness of procedure, and remedies. It held the 2nd Respondent improperly joined: the 1st Respondent was the sole employer, the Water Provision Agreement excluded joint liability, and the 2nd Respondent played only a supervisory role and knew nothing of the disputes until served. On substance, the Court found no valid ground for termination: the complaints were unsubstantiated, the customer complainants never appeared before the disciplinary committee or the Court, and the 1st Respondent adduced no evidence. However, procedure under Section 41 of the Employment Act was substantially complied with, including the appeal; the absence of a union representative at the initial hearing was not the employer's fault, and flexibility in panel composition was permissible. Reinstatement was refused as more than three years had elapsed. The Court awarded each grievant ten months' gross salary as compensation for unfair termination and salaries withheld during suspension, and rejected medical costs, special damages, and conciliation costs. The claim against the 2nd Respondent was dismissed with no order as to costs; the 1st Respondent to pay the Claimant's costs within 30 days.

Key legal issues

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01

Whether the 2nd Respondent (Coast Water Services Board) was properly joined

Holding

The 2nd Respondent was improperly joined; the 1st Respondent was the sole employer of the Grievants.

Reasoning

The Claimant had a Recognition Agreement and collective bargaining relationship only with the 1st Respondent. The Water Provision Agreement expressly excluded joint liability. The 1st Respondent controlled, paid, equipped and disciplined the Grievants, and the 2nd Respondent played only a supervisory role and was unaware of the disputes until served with summons.

02

Whether the Grievants were dismissed for valid reason under Sections 43 and 45 of the Employment Act

Holding

No valid ground for termination was established.

Reasoning

The allegations of soliciting and receiving money from customers were never substantiated: the complainant customers did not appear before the Disciplinary Committee or the Court, the M-pesa allegations were not tested, the matters were not reported to Police, and no evidence was adduced by the 1st Respondent. Witch-hunt allegations were not discounted.

p. 6
03

Whether the disciplinary procedure was fair under Section 41 of the Employment Act

Holding

Fair procedure was observed; the minimum statutory threshold was met.

Reasoning

The Grievants were informed of the allegations, asked to show cause, responded in writing, were heard, appealed and were heard on appeal. The absence of a Trade Union representative at the initial hearing was not attributable to the employer, and the presence of officers involved in investigations was not shown to cause prejudice, flexibility in panel composition being permissible.

p. 7
04

Entitlement to remedies

Holding

Compensation of 10 months' gross salary each and salaries withheld during suspension awarded; reinstatement, medical costs, special damages and conciliation costs refused.

Reasoning

Reinstatement was no longer legally valid as more than 3 years had elapsed since dismissal. Half pay withheld during suspension was payable under Section 18(4) of the Employment Act. The special damages and medical claims lacked foundation, and no legal framework exists for costs of conciliation.

p. 7

Legal principles established

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  • An employer must prove the reason for termination and demonstrate the validity of accusations; untested allegations unsupported by evidence do not constitute valid reason under Sections 43 and 45 of the Employment Act.
  • A degree of flexibility in the composition of disciplinary panels is permissible where the pool of officers is limited, unless prejudice is shown.
  • A court departing from a Conciliator's findings and recommendations is entitled to sound reasons for not being bound.
  • Where a company deploys employees fully to a licensee which controls, pays and disciplines them, the employees do not become dual employees of the supervisory body.

Court orders

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  1. 1.The 2nd Respondent is improperly joined to the Claim, and the Claim against the 2nd Respondent is dismissed with no order on the costs.
  2. 2.A declaration that there was no valid ground in terminating the Grievants' contracts of employment.
  3. 3.A finding that fair procedure was observed.
  4. 4.The 1st Respondent shall pay to the 3 Grievants through the Claimant Union 10 months' gross salary in compensation for unfair termination, and salaries withheld during the period of the Grievants' suspension.
  5. 5.The 1st Respondent to meet the Claimant's costs of the Claim.
  6. 6.The Award shall be satisfied in full within 30 days of its delivery.

Authorities

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Legislation

  • Industrial Court Procedure RulesRule 27(1)(a)
  • Employment ActSection 44(4)
  • Employment ActSections 43 and 45
  • Employment ActSection 41
  • Employment ActSection 18(4)
  • Industrial Court Actreinstatement within 3 years of dismissal
  • Labour Relations Actconciliation
  • Constitution of Kenyaconciliation as legitimate dispute resolution mechanism

Cases cited (3)

  • Party v. Commonwealth Bank
    [2002] IRCA 1 (19th February 2002)
  • KUCFAW v. National Water Conservation and Pipeline Corporation
    Cause Number 802 of 2011
  • Francis Mwelemi Simeon v. English Press
    Cause Number 1547 of 2011
Jurisdiction invoked
Rule 27(1)(a) of the Industrial Court Procedure Rules 2010; Industrial Court Act; Employment Act 2007

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 Union Of Commercial, Food,and Allied Workers [Kucfaw] v Mombasa Water Supply & Sanitation Company & another [2015] KEELRC 666 (KLR)", Case Analysis (2015). Cause Number 222 'A' of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/666/eng@2015-07-31

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