Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedELRC No. 32 of 2014· [2016] KEELRC 133 (KLR)

Kenya Plantation & Agricultural Workers Union v Unilever Tea (K) Limited [2016] KEELRC 133 (KLR)

Employment and Labour Relations Court
8 December 2016
DMD.K. Njagi Marete
1,318 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled that once a Return to Work Formula is signed, employers cannot discipline workers for striking under it.

What this practically means

#

Executive summary

#
The claimant union, Kenya Plantation and Agricultural Workers Union, moved the court by an application dated 1st August 2016 seeking an order restraining the respondent, Unilever Tea Kenya Limited, from effecting show cause notices, disciplinary action or victimisation against employees for participating in a strike between 12th and 23rd July 2016. The strike arose after the respondent reneged on its commitment to follow the court process and sign the CBA following the judgment of 30th June 2016 in ELRC No. 32 of 2014. On 24th July 2016 the parties signed a Return to Work Formulae whose clause 4 provided that there would be 'No victimization by either party subject to the applicable law'. The union complained that from 27th July 2016 the respondent issued show cause letters targeting specific individuals, amounting to victimisation and constructive dismissal. The respondent denied victimisation, submitting that disciplinary action was directed at employees who vandalised and destroyed property, and that the applicable law - the Employment Act 2007 - allows discipline for misconduct. It also contended that the application was opposed through its own application dated 4th August 2016. The court held that the 'subject to the applicable law' limb of clause 4 could not have been intended to allow disciplinary proceedings after the Return to Work Formulae, as this would defeat the purpose of such Formulae, which protect striking workers returning to work unscathed. The respondent's opposition through a separate antagonistic application was found unprocedural and baseless. The application was allowed with costs to the claimant.

Key legal issues

#
01

Interpretation of clause 4 of the Return to Work Formulae - 'No victimization by either party subject to the applicable law'

Holding

The 'subject to the applicable law' limb does not permit the employer to institute disciplinary proceedings against striking workers after the Return to Work Formulae; doing so would defeat the purpose of the Formulae.

Reasoning

The court considered that Return to Work Formulae exist to right a bad industrial relationship after strikes and to give striking workers a safe avenue to return to work unscathed. The clause on no victimisation was sculpted to protect workers from the all-powerful employer. Allowing disciplinary proceedings after the pact would breed nonsense to the philosophy and principles of such Formulae. The respondent's submissions were therefore found unsustainable and the claimant's case agreed with.

p. 3
02

Whether the application was opposed

Holding

The submission that the application was opposed by virtue of the respondent's antagonistic application dated 4th August 2016 had no basis in law and did not hold water; there was nothing on record opposing this application.

Reasoning

The respondent argued the application was opposed through another application dated 4th August 2016 and that a determination would dissipate the current application. The court found nothing on record in support of this submission, held the argument unprocedural and without basis in law, and rejected it.

p. 3

Legal principles established

#
  • The last limb of a 'no victimisation subject to the applicable law' clause in a Return to Work Formulae cannot be interpreted to permit disciplinary proceedings after the Return to Work Formulae.

Court orders

#
  1. 1.The application dated 1st August 2016 is allowed
  2. 2.Costs of the application awarded to the claimant/applicant

Authorities

#

Legislation

  • Employment Actnot specified; cited as allowing discipline for misconduct
Jurisdiction invoked
not stated in judgment; the application arises from proceedings in which the court delivered judgment on 30th June 2016 over the outstanding issues pertaining to the 2014-2015 CBA

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Plantation & Agricultural Workers Union v Unilever Tea (K) Limited [2016] KEELRC 133 (KLR)", Case Analysis (2016). ELRC No. 32 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/133/eng@2016-12-08

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