Kenya Building, Construction, Timber and Furniture Industries Employees Union v Cosmino Rosafio [2015] KEELRC 1338 (KLR)
The bottom line
#A Kenyan court ruled an employer unfairly sacked 37 workers for joining a union and must pay each two months' wages plus terminal benefits.
What this practically means
#Executive summary
#Key legal issues
#Limitation - whether the claim is time barred under Section 90 of the Employment Act 2007
The claim is not time barred as it was governed by the Trade Disputes Act regime; the dispute was reported to the Minister in 2005 and the transition to the Labour Relations Act preserved the Trade Disputes Act procedure.
Termination occurred on 8th May 2004 and the dispute was reported to the Minister in 2005 under the Trade Disputes Act Cap 234. The Minister exercised discretion to receive the dispute under Section 4para 4. Section 84 of the Labour Relations Act 2007 directs that pre-Act termination disputes be handled under the Trade Disputes Act Fifth Schedule, so Section 90 of the Employment Act does not apply.
Whether the Grievants were employees and whether termination was unfair
The Investigator's findings confirmed employment and unfair termination for union membership; the Respondent's general denials were of no persuasive value.
The Ministry of Labour Investigator confirmed the 37 Grievants were employees, were terminated after joining the union, were underpaid, worked excess hours without overtime, and received no leave. The Respondent made submissions before the Investigator without denying employment. His belated, general denials in the Statement of Response did not feature before the Investigator and carried no persuasive weight.
Freedom of association and remedy
Termination was because the Grievants joined the Claimant Union, offending freedom of association guarantees and Section 15 of the Trade Disputes Act; compensation of 2 months' wages each was awarded.
The court found the Grievants were victimized for exercising freedom of association guaranteed under successive Constitutions, the Trade Unions Act Cap 233, and ILO Convention 87 of 1948. Termination offended Section 15 of the Trade Disputes Act, and compensation at the equivalent of 2 months' wages at the rate applicable on the date of termination was allowed for each Grievant.
Legal principles established
#- Disputes on termination of employment arising before the Labour Relations Act 2007 are governed by the Trade Disputes Act under the transitional provisions, and are not defeated by the limitation period in Section 90 of the Employment Act 2007.
- Termination of employees for joining a trade union violates freedom of association and constitutes unfair termination.
Court orders
#- 1.A declaration that termination of the Grievants' contracts of employment was unfair
- 2.The Respondent to pay each Grievant 2 months' wages as compensation for unfair termination under Section 15 of the Trade Disputes Act, and terminal benefits as per appendix 2 of the Memorandum of Claim
- 3.The Award to be satisfied in full within 30 days of delivery
- 4.No order on costs and interest
- Jurisdiction invoked
- Trade Disputes Act Cap 234 (dispute reported to Minister under Section 4[4] and forwarded to the Industrial Court); Section 84 of the Labour Relations Act No. 14 of 2007 transitional provisions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Building, Construction, Timber and Furniture Industries Employees Union v Cosmino Rosafio [2015] KEELRC 1338 (KLR)", Case Analysis (2015). Cause Number 237 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1338/eng@2015-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.