Kenya Plantation & Agricultural Workers Union v Greystone Farm (formerly Equatorial Nut) Limited [2016] KEELRC 413 (KLR)
The bottom line
#A Kenyan court ruled a farm unfairly fired ten workers for joining a union, awarding each a full year's salary, but rejected their late leave and overtime claims.
What this practically means
#Executive summary
#Key legal issues
#Limitation - leave and overtime claims
The claims for outstanding leave and overtime were time barred.
The termination occurred on 23.04.2012 and the suit was filed on 29.01.2015, well beyond the 12-month limitation for continuing injuries under section 90 of the Employment Act, 2007. Even taking the conciliator's certificate date of 23.02.2013 as the cause of action, the 12 months would lapse on 23.02.2014, still before filing. The claims therefore failed on limitation grounds.
Existence of employment relationship
The grievants established they were the respondent's employees.
The respondent could not verify employment records because its farm was vast and records were destroyed in a fire. The claimant's witness testified to employment from 24.04.2007 and union membership from 03.12.2012. The respondent did not deny that its manager Mwangi told the grievants not to report on duty. The court therefore found the employment relationship proved.
Unfair termination
The termination was unfair both procedurally and substantively.
The grievants were given neither notice nor a hearing as required by section 41 of the Employment Act, 2007. The court further found the reason for the sudden termination was the grievants' joining of the claimant trade union, which under section 46(c) of the Act constitutes an unfair reason for termination. Both procedural and substantive fairness were breached.
Remedies
Each grievant awarded 12 months' salaries for unfair termination, one month's notice pay and gratuity at 15 days' pay per year served.
The unlawful reason for termination was treated as an aggravating circumstance; the grievants desired to continue in employment and did not contribute to their termination, justifying the maximum 12 months' compensation. NSSF was not remitted, so gratuity or service pay at 15 days per year served was due under section 35(5), and one month's pay in lieu of notice under section 35(1)(c) of the Employment Act, 2007.
Legal principles established
#- An employee who is not accorded notice and hearing as required by section 41 of the Employment Act is unfairly terminated.
- Termination of an employee because of joining a trade union is an unfair reason for termination under section 46(c) of the Employment Act, 2007.
- Unlawful reason for termination amounts to an aggravating circumstance warranting the maximum 12 months' salary compensation.
- Claims for leave and overtime are continuing injuries subject to the 12-month limitation under section 90 of the Employment Act, 2007.
Court orders
#- 1.The respondent to pay each grievant 12 months' salaries for unfair termination, one month pay in lieu of termination notice, and gratuity as computed in the amended memorandum of claim filed on 25.11.15
- 2.The amount in (a) to be paid by 15.12.2016 failing which interest to be payable at court rates from the date of judgment till full payment
- 3.The respondent to pay the claimant's costs of the suit
- 4.The decree to issue accordingly
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance memorandum of claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Plantation & Agricultural Workers Union v Greystone Farm (formerly Equatorial Nut) Limited [2016] KEELRC 413 (KLR)", Case Analysis (2016). Cause No 45 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/413/eng@2016-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.