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ELRCDismissedCause No 24 of 2015· [2015] KEELRC 1368 (KLR)

Kenya Plantation & Agricultural Workers Union v Finlays Horticulture Kenya Ltd [2015] KEELRC 1368 (KLR)

Employment and Labour Relations Court
6 March 2015
RSRadido Stephen
2,022 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 allowed an employer's full-pay suspension to stand, ruling courts only halt workplace disciplinary processes in very exceptional circumstances.

What this practically means

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Executive summary

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The Kenya Plantation & Agricultural Workers Union, acting for its member and chief shop steward Richard Onwong'a Nyandago, challenged his suspension by Finlays Horticulture Kenya Ltd on 23 January 2015 over allegations of unauthorised meetings and incitement of staff. The Union sought a declaration that the suspension was unlawful and unfair, permanent injunctions restraining the disciplinary process and further victimisation, and costs. The Union invoked Article 41 of the Constitution, ILO Convention No. 135, section 5(2) of the Employment Act and section 12(3)(iii) of the Employment and Labour Relations Court Act, arguing the Grievant might not receive a fair hearing. The Respondent countered that suspension on full pay was contractually and procedurally provided for under its Human Resources Policies and Procedures Manual, that employees are subject to lawful disciplinary processes, and that courts should not intervene in employer administrative processes absent exceptional circumstances. Radido J held that suspension requires a contractual or statutory basis, which the Respondent had; that the statutory right to a hearing attaches to termination decisions rather than clearly to suspension; and that the Court may interdict a disciplinary process only in exceptional cases where grave injustice and absence of alternative remedies are demonstrated. Finding no grave injustice and available remedies including reinstatement, and noting safeguards in the Employment Act and the applicable Collective Bargaining Agreement, the Court dismissed the motion dated 3 February 2015 with no order as to costs.

Key legal issues

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01

Authority to suspend an employee pending investigations

Holding

The suspension was lawful because the Respondent's contract and HR policies conferred authority to suspend on full pay pending investigations

Reasoning

At common law, unilateral suspension without contractual authority would breach contract. The dictum in Miguna Miguna that suspension to conclude investigations is permissible was endorsed, subject to express or statutory authority. In this case the Respondent's Human Resources Policies and Procedures Manual, clause 6.4, provided for suspension on full pay pending investigations, satisfying that requirement.

p. 3
02

Whether a hearing is required before suspension

Holding

The statutory framework does not clearly require a hearing before suspension, and the Court declined to found such a pre-suspension right on the constitutional right to fair labour practices

Reasoning

Section 41 of the Employment Act protects employees from procedurally unfair termination, and the right attaches once the employer makes a non-compliant decision to terminate. Whether a hearing is a prerequisite before suspension is open to debate, as the statutory safeguard is not framed like South Africa's. The Union sought intervention before it was known whether the employer would comply.

p. 3
03

Judicial intervention in disciplinary processes

Holding

The Court may interdict an employer's disciplinary process but only in exceptional circumstances upon compelling reasons; none were shown here

Reasoning

Reviewing domestic and comparative authority, the Court held it has jurisdiction to intervene where grave injustice would otherwise result and no alternative remedies exist. Here, the Grievant faced no grave injustice; safeguards existed in the Employment Act and the Collective Bargaining Agreement, and remedies such as reinstatement remained available after any unfair termination.

p. 4

Legal principles established

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  • Suspension of an employee requires a contractual or statutory basis; unilateral suspension without such authority is a breach of contract
  • The Court has jurisdiction to intervene in an employer's disciplinary process but only in exceptional cases where compelling reasons, such as grave injustice and absence of alternative remedies, are shown
  • An employer who fails to comply with statutory procedural fairness safeguards does so at the risk of substantial compensation or reinstatement
  • Where an employer has contractually agreed disciplinary procedures, failure to observe them may amount to repudiation of contract

Court orders

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  1. 1.The motion dated 3 February 2015 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41(1) & (2)(c)
  • Employment Act, 2007section 5(2)
  • Employment Act, 2007section 41
  • Employment and Labour Relations Court Actsection 12(3)(iii)
  • ILO Convention No. 135 on Workers Representativesratified by Kenya on 9 April 1979

Cases cited (8)

  • Miguna Miguna v Permanent Secretary, Office of the Prime Minister & Anor
    (2011) eKLR
  • Muthusi & 2 Ors v Gathogo & 2 Ors
    (1990) KLR 90
  • Aviation & Allied Workers Union (K) v Kenya Airways Ltd
    Nairobi Cause No. 377 of 2012; (2012) eKLR
  • McKenzie v Smith
    (1976) IRLR 345
  • The Post Office v Strange
    (1981) IRLR 515
  • Rebecca Ann Maina & 2 Ors v Jomo Kenyatta University of Agriculture and Technology
    (2014) eKLR
  • Joseph Mutura Mberia & Anor v Council of Jomo Kenyatta University of Agriculture and Technology (JKUAT)
    (2013) eKLR
  • Booysen v The Minister of Safety and Security & Ors
    (2011) 1 BLLR 83 (LAC)
Jurisdiction invoked
Employment and Labour Relations Court Act, section 12(3)(iii) (powers of the Court), read with Article 41 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Plantation & Agricultural Workers Union v Finlays Horticulture Kenya Ltd [2015] KEELRC 1368 (KLR)", Case Analysis (2015). Cause No 24 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1368/eng@2015-03-06

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