Benedict Ojou Juma & 10 others v A.J. Pereira & Sons Limited [2016] KEELRC 572 (KLR)
The bottom line
#A Kenyan court ruled the workers' strike gave valid grounds to dismiss them, but the employer's failure to follow fair procedure made the sackings unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimants deserted their jobs or were dismissed
Termination was at the instance of the Employer; desertion was not established.
The Claimants withdrew labour over a genuine grievance on staggered salary payments contrary to Section 18 of the Employment Act. They were instructed to return by 9.30 a.m. or be sacked, and when they returned 24 hours later their slots had been filled by fresh faces. The Court concluded the employer, not the employees, ended the relationship.
Whether termination was fair
Termination was for valid reason under Sections 43 and 45 of the Employment Act and Section 80 of the Labour Relations Act, but procedurally unfair under Sections 41 and 45.
The Claimants engaged in a wildcat strike over a genuine grievance and did not use the proper grievance-handling mechanism, giving the employer valid reason. However, the employer did not invoke the right procedure in ending the relationship, so termination was unfair, warranting notice pay and compensation.
Whether dismissal for Trade Union membership was proved
No evidence supported the assertion that the Claimants were dismissed on account of Trade Union association.
Although the Claimants pleaded they were dismissed because they joined a Trade Union in 2008 and refused to rescind membership, the evidence at trial centred on the salary payment dispute and the 1st April 2015 standoff. The Court found absolutely no evidence supporting the victimisation claim.
Entitlement to gratuity despite summary dismissal
The Claimants are granted gratuity at 20 days' salary for each completed year of service notwithstanding summary dismissal.
Section 18 of the Employment Act entitles employees summarily dismissed for lawful cause to all monies and benefits due up to dismissal. Employees do not forfeit benefits worked for over years merely because they exited on disciplinary grounds; CBA clauses to the contrary are unfair labour practices. The CBA gratuity was additional social security, permissible since the Employment Act sets minimum standards.
Milk allowance under clause 29 of the CBA
Claimants entitled to milk for 5 days of the working week but received it on 1 day; compensated at Kshs. 8,800 each for 11 months.
Clause 29 of the CBA provided for half a litre of milk daily; the employer's claim that the CBA was in error was inconceivable. Compensation limited to the CBA period 1st May 2014 to 1st April 2015, for 4 denied days per week at Kshs. 50 per half litre, and the earlier 6-year claim was rejected as an overshot unsupported by evidence of previous CBAs.
Legal principles established
#- It is not permissible for an employer to pay salaries in perpetual arrears; salary must be paid when it falls due under Section 18 of the Employment Act.
- Contract clauses excluding employees who exit employment on disciplinary grounds from benefits accrued through their labour are contrary to Section 18 of the Employment Act and amount to unfair labour practices.
- Parties cannot negotiate and conclude a CBA and then allege error in the CBA at the point of implementation.
- Where employees engage in a wildcat strike, the employer may have valid reason to terminate but must still follow fair procedure; termination at the instance of the employer without procedure is unfair.
Court orders
#- 1.Declaration that termination was on valid ground but procedurally unfair and therefore unfair
- 2.Respondent to pay each of the named Claimants notice pay, 5 months' salary in compensation for unfair termination, milk allowance for 11 months at Kshs. 8,800 each, and gratuity at 20 days' salary for each completed year of service, as itemised in the order
- 3.Respondent to pay the Claimants a total amount of Kshs. 3,088,993
- 4.Each party to bear its own costs
- 5.Entire amount payable within 30 days of delivery of the decision, in default to attract interest at 14% p.a. from the end of the 30 days until payment in full
- Jurisdiction invoked
- Section 49 of the Employment Act 2007 and Section 12 of the Employment and Labour Relations Court Act; Rule 27(1)(a) of the Industrial Court (Procedure) Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benedict Ojou Juma & 10 others v A.J. Pereira & Sons Limited [2016] KEELRC 572 (KLR)", Case Analysis (2016). Cause No. 264 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/572/eng@2016-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.