Kenya Union of Domestic Hotels Educational Institutions and Hospital Workers v Pwani University [2015] KEELRC 953 (KLR)
The bottom line
#A protected strike in Kenya doesn't protect workers who commit misconduct — Pwani University's dismissed shop steward won only 2 months' pay for a flawed hearing process.
What this practically means
#Executive summary
#Key legal issues
#Protection of Shop Stewards and strikers under the Constitution, Labour Relations Act and ILO Convention 135
A protected strike is lawful and participation in it is not a fair reason for dismissal, but the protection is lost where the striker engages in unlawful conduct
The Court relied on Article 41(2)(c) and (d) of the Constitution, Section 76 of the Labour Relations Act and Section 46(f) of the Employment Act, together with ILO Convention 135, to affirm protection of strikers and Workers' Representatives. It then held that this protection is conditioned on the activities being lawful and conforming to laws and collective agreements. The Grievant's retention of the pump keys and the damaging of the water pump placed him outside that protection.
Validity of the grounds for dismissal
The Respondent had valid and fair grounds to summarily dismiss the Grievant for insubordination and criminal damage
The Court found as a fact that the Grievant took the pump house keys on the eve of the strike, refused to surrender them, and participated in or permitted damage to the pump's electrical wiring. These amounted to insubordination and criminal activity under Section 44(4) of the Employment Act, entitling the Respondent to summary dismissal notwithstanding the Grievant's status as a Shop Steward. The charges relating to SMS messages to Members, being ancillary to Shop Steward duties, were properly dropped.
Procedural fairness of the disciplinary process
The procedure was substantially fair but flawed: the suspension letter was not copied to the Branch Secretary, and the Grievant was not supplied with the Investigation Report
The Grievant was notified of the charges and hearing date, was accompanied by his Branch Secretary, and had an appeal right which he chose not to exhaust. The Court held Trade Union officials need not be present at decision-making deliberations. However, non-supply of the Investigation Report was a significant flaw, and the failure to copy the suspension letter to the Branch Secretary a minor lapse not shown to cause prejudice. These infractions warranted compensation under Section 49 of the Employment Act.
Legal principles established
#- Participation in a protected strike does not shield an employee from disciplinary action for misconduct or criminal acts committed during the strike
- The right to strike is not a licence to engage in misconduct
- In determining disciplinary action against a Shop Steward, the employer must consider whether the alleged misconduct was committed as an employee or was ancillary to Shop Steward duties
- An employee is entitled to all documents relevant to his defence, including the Investigation Report, before and during a disciplinary hearing
Court orders
#- 1.A declaration that termination of the Grievant's contract of employment was based on fair and valid ground, but flawed on procedure
- 2.The Respondent to pay the Grievant 2 months' gross salary in compensation for unfair termination within 30 days of the reading of the Award
- 3.Other prayers rejected
- Jurisdiction invoked
- Section 12 of the Industrial Court Act; Industrial Court (Procedure) Rules 2010, Rule 27(1)(a)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Domestic Hotels Educational Institutions and Hospital Workers v Pwani University [2015] KEELRC 953 (KLR)", Case Analysis (2015). Cause Number 242 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/953/eng@2015-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.