Kenya Chemical & Allied Workers Union v East African Portland Cement Company Limited [2015] KEELRC 1012 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Compliance with Section 41 procedural fairness
The Respondent complied with Section 41 by giving each grievant an opportunity to be heard, inviting the grievants and union representatives, and allowing appeals
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.
Substantive justification for the dismissals
There was basis for termination under Section 44(4)(g) where there is proof of dishonest or criminal conduct against the employer's property
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.
Effect of the conciliator's recommendations and the recognition agreement
The conciliator's recommendations did not bind the Respondent; the recognition agreement clause making such decisions final could not oust the Court's jurisdiction
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.
Legal principles established
#- 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
#- 1.The Claimant's suit is dismissed for failure to prove its case on a balance of probability
- 2.Costs to the Respondent
- Jurisdiction invoked
- Section 73(1) of the Labour Relations Act 2007 - referral of an unresolved trade dispute to the Industrial Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.