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ELRCDismissedCause No. 1555 of 2011· [2015] KEELRC 671 (KLR)

Universities Academic Staff Union v Egerton University Council [2015] KEELRC 671 (KLR)

Employment & Labour Relations Court
22 July 2015
NMNzioki wa Makau
1,589 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan lecturers dismissed for joining an illegal strike lost their back pay claim because reinstatement alone does not guarantee payment for lost time.

What this practically means

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Executive summary

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The Claimant union sued on behalf of three of its members - Dr. Robert Shivaro, Fred Mwangangi and Muga Kolale - lecturers and union officials at Egerton University who were summarily dismissed on 25 October 2006 for organizing and participating in a strike declared illegal by the court. On appeal, the University reinstated them effective from the date of tender of an apology and report to duty, but declined to pay salaries and allowances for the period of dismissal. The union sought payment of the grievants' dues without loss of benefits. The facts were undisputed; the dispute concerned the interpretation of the reinstatement - whether it was unconditional (as the Claimant asserted, entitling the grievants to back pay) or conditional (as the Respondent asserted). In written submissions, the Claimant relied on authorities in which reinstated employees received back pay, arguing back pay always follows reinstatement. The Respondent justified the dismissal under the repealed Employment Act and the Trade Disputes Act, contending that paying for the period would reward misconduct. The court distinguished all the cited precedents on the basis that back pay was awarded there only because the dismissals were found unlawful or unfair. Here the dismissals stemmed from an illegal strike, were lawful, and the reinstatement letters were conditional. The claim was dismissed with no order as to costs on 22 July 2015.

Key legal issues

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01

Whether the grievants were entitled to back pay following their reinstatement

Holding

No - the dismissals were lawful because the grievants participated in a strike declared illegal by the court, and the reinstatement letters were conditional.

Reasoning

The court distinguished the authorities cited by the claimant, noting that in all of them back pay followed because the dismissals had been found unfair or unlawful. Here the strike was declared illegal, so the employees were not protected under the Trade Disputes Act and the disciplinary action was justified. Further, the reinstatement was expressly conditional on tendering an apology and reporting to duty, effective from that date, and paying for the period would reward misconduct.

p. 4

Legal principles established

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  • Back pay is a remedy available only where the employee has suffered an injustice arising from the employer's unfair labour practice or unlawful dismissal; it does not follow reinstatement where the dismissal was lawful.

Court orders

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  1. 1.The suit is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Trade Disputes ActSection 36
  • Employment Act (cap 226, now repealed)Section 17(a)

Cases cited (7)

  • KUDHEIHA v Nairobi Club
    [2013] eKLR
  • Fredrick Odongo Owegi v CFC Life Assurance Ltd
    [2014] eKLR
  • Mary W. Ndirangu v NSSF, Cause No. 1652 of 2011
    unreported
  • UASU v Kenyatta University, Cause No. 160 of 2009
    unreported
  • Republic v Maseno University Disciplinary Committee & Another, HC. Misc Appl. No. 963 of 2007
    unreported
  • Dr. Billy George Ng'ong'ah v Maseno University, HC. Misc. Appl. No. 527 of 2007
    unreported
  • UASU v Maseno
    [2014] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Industrial Court (Employment & Labour Relations Court)

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, "Universities Academic Staff Union v Egerton University Council [2015] KEELRC 671 (KLR)", Case Analysis (2015). Cause No. 1555 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/671/eng@2015-07-22

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