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ELRCPartially AllowedCause No. 878 of 2012· [2015] KEELRC 745 (KLR)

Peter Otieno Ombude v Kenya Plantation & Agricultural Workers [2015] KEELRC 745 (KLR)

Employment and Labour Relations Court
9 July 2015
HWHellen S. Wasilwa
2,862 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 that suspending a union official without a hearing or valid reasons was an unlawful termination, awarding him damages.

What this practically means

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Executive summary

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The claimant, elected Branch Secretary of the respondent union's Sulmac/Oserian branch, testified at the ICC in The Hague in October 2011 after seeking leave. On his return, branch officials held a press conference disowning his testimony, and on 11/10/2011 nine branch committee members suspended him indefinitely for unavailability, inability to deliver services and not serving members' interests. His office was locked and he was never paid from October 2011. The respondent contended the branch had power under its constitution to discipline its officers and that the claimant had failed to appeal properly. The court framed four issues: validity of reasons, due process, the claimant's position, and remedies. On the first, applying Section 43 of the Employment Act, it held the respondent failed to prove valid reasons, as the claimant's performance record was exemplary and the real grievance was his ICC testimony. On due process, Rules 15 and 19 of the union constitution and Section 41 of the Employment Act required a hearing by the Executive Committee on 7 days' notice, which was never given; his Article 50(1) rights were flouted. The suspension was unfair, unlawful and, given the indefinite lock-out and non-payment, amounted to an unlawful termination. The court awarded Kshs.280,800 comprising notice pay, 12 days' October 2011 salary, leave dues and 12 months' damages for unlawful termination, with costs and interest, refusing salary to the end of his term, allowances and exemplary damages.

Key legal issues

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01

Validity of reasons for suspension

Holding

There was no valid reason to suspend the Claimant; his work record was good and the real reason was his ICC testimony

Reasoning

The employer must prove reasons for termination under Section 43 of the Employment Act. The claimant had no prior warnings, performed well, and brokered a return-to-work formula. The branch's newspaper disavowal of his ICC testimony showed the true motive. The reasons of unavailability, inability to deliver services and not serving members' interests were therefore not substantiated.

p. 5
02

Due process before suspension

Holding

The suspension by the branch committee violated the union's constitution, Section 41 of the Employment Act and Article 50(1) of the Constitution

Reasoning

Under Rules 15 and 19 of the union's constitution only the Executive Committee may suspend a member after 7 days' notice and a hearing. The claimant was suspended by a branch office without notice or opportunity to be heard. Section 41 of the Employment Act requires an explanation and hearing before termination. His Article 50(1) rights and fair administrative action were flouted.

p. 6
03

Characterisation of the suspension

Holding

The indefinite suspension with no communication or payment amounted to an unlawful termination

Reasoning

Since the suspension on 12/10/2011 the respondent neither communicated with the claimant nor paid his dues. The court therefore treated the suspension as a constructive/unlawful termination and awarded remedies under the Employment Act including one month's notice pay and 12 months' damages.

p. 6

Legal principles established

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  • An employer bears the burden of proving the reason for termination, failing which the termination is unfair
  • A union member must be given prior notice of at least 7 days and an opportunity to state his case before suspension, per the union's own constitution

Court orders

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  1. 1.1 month salary in lieu of notice of Kshs.19,500
  2. 2.Salary for October 2011 for 12 days of Kshs.7,800
  3. 3.Outstanding leave days for 2011 of Kshs.19,500
  4. 4.12 months' salary as damages for unlawful termination of Kshs.234,000
  5. 5.Total award of Kshs.280,800
  6. 6.Respondent to pay costs of the case plus interest at court rates from the date of judgment until payment in full

Authorities

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Legislation

  • Employment Act 2007Section 43
  • Employment Act 2007Section 41
  • Trade Unions Act Cap 233 Laws of Kenya (repealed)
  • Constitution of Kenya 2010Article 50(1)
  • Respondents Union ConstitutionRules 15 and 19
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (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, "Peter Otieno Ombude v Kenya Plantation & Agricultural Workers [2015] KEELRC 745 (KLR)", Case Analysis (2015). Cause No. 878 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/745/eng@2015-07-09

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