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ELRCDismissedNot stated in the judgment as provided· [2015] KEELRC 1012 (KLR)

Kenya Chemical & Allied Workers Union v East African Portland Cement Company Limited [2015] KEELRC 1012 (KLR)

Industrial Court (Employment and Labour Relations Court)
5 May 2015
2,258 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled the employer fairly heard and dismissed three employees for dishonesty, and a union cannot make a conciliator's decision final.

What this practically means

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Executive summary

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The Claimant union sued on behalf of three grievants summarily dismissed or terminated by the Respondent between August and December 2010, alleging that the dismissals lacked cause and were carried out without the fair hearing procedure required under Section 41 of the Employment Act. A conciliator appointed after a trade dispute was reported recommended reinstatement of the first grievant and reduction of the second and third dismissals to normal termination; the Respondent accepted this only for the third grievant. The suit was disposed of by written submissions. The Court held that a recognition agreement clause making a conciliator's decision final could not oust the Court's jurisdiction under Section 73(1) of the Labour Relations Act 2007. Applying Sections 41, 44(4)(g), 45(5) and 47(5) of the Employment Act, the Court found that the burden of proving unfair termination lay on the Claimant, that each grievant was given a show-cause letter, a disciplinary hearing with union representation, and an appeal, and that dishonesty, negligence and theft by servant provided valid grounds for dismissal. The second grievant's plain termination was regarded as lenient, and the third grievant's dues were already paid after his summary dismissal was reduced to normal termination. The suit was dismissed with costs to the Respondent on 5th May 2015.

Key legal issues

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01

Compliance with Section 41 procedural fairness

Holding

The Respondent complied with Section 41 by giving each grievant an opportunity to be heard, inviting the grievants and union representatives, and allowing appeals

Reasoning

The Court found that show cause letters were issued, disciplinary meetings were held with union representatives invited, and appeals were considered. Giving the opportunity to be heard demonstrated compliance with the law, notwithstanding the union's contention that investigation reports were not shared and that the meetings did not meet the Section 41 threshold.

p. 4
02

Substantive justification for the dismissals

Holding

There was basis for termination under Section 44(4)(g) where there is proof of dishonest or criminal conduct against the employer's property

Reasoning

The first grievant was implicated in forgery of payment vouchers, the second in negligent damage to a fuel tank after a prior warning, and the third in issuing cement beyond customers' limits amounting to theft by servant. Trust and confidence being critical, the Court upheld the dismissals.

p. 4
03

Effect of the conciliator's recommendations and the recognition agreement

Holding

The conciliator's recommendations did not bind the Respondent; the recognition agreement clause making such decisions final could not oust the Court's jurisdiction

Reasoning

The Court held that recognition agreements, however old, are subject to the dictates of the law. A party is entitled under Section 73(1) of the Labour Relations Act to refer an unresolved trade dispute to the Industrial Court after conciliation, so the Respondent was entitled to reject the recommendations in part.

p. 3

Legal principles established

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  • A private agreement that a conciliator's or labour officer's decision is final cannot oust the Court's jurisdiction to review the fairness of that decision
  • The burden of proving unfair termination rests on the employee while the burden of justifying the dismissal rests on the employer
  • In assessing whether termination was just and equitable, the Court considers the procedure adopted, communication of the decision, and the handling of any appeal

Court orders

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  1. 1.The Claimant's suit is dismissed for failure to prove its case on a balance of probability
  2. 2.Costs to the Respondent

Authorities

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Legislation

  • Labour Relations Act 2007Section 73(1)
  • Employment ActSection 47(5)
  • Employment ActSection 44(4)(g)
  • Employment ActSection 45(5)
  • Employment ActSection 41(1)

Cases cited (5)

  • Peter Maroko Omondi v Pandya Memorial Hospital
    Cause No. 332 of 2013
  • Tailors & Textiles Workers Union v Vaja's Manufacturers
    Cause No. 1386 of 2011
  • David Getare Nyangau v Houseman General Contractors Ltd
    [2013] eKLR
  • Banking Insurance & Finance Union v Post Bank Ltd
    [2013] eKLR
  • Moses Chavangi v Barclays Bank Ltd
    Cause No. 694 of 2010
Jurisdiction invoked
Section 73(1) of the Labour Relations Act 2007 - referral of an unresolved trade dispute to the Industrial 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, "Kenya Chemical & Allied Workers Union v East African Portland Cement Company Limited [2015] KEELRC 1012 (KLR)", Case Analysis (2015). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1012/eng@2015-05-05

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