Kenya Plantation and Agricultural Workers Union v Sotik Highlands Tea Estate Limited [2016] KEELRC 1011 (KLR)
The bottom line
#A Kenyan court ruled a tea estate unfairly sacked 252 striking workers because each employee deserved an individual hearing before dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether termination of the grievants' employment for participating in an unprotected strike was wrongful, unfair and unlawful
The termination was wrongful, unfair, unprocedural and unlawful because the respondent used a collective process - broadcast show-cause notices and the South African ultimatum principle - without individual hearings or union participation, and the minutes of the 7th June 2012 meetings were prepared and signed unilaterally.
Although the strike was unprotected, its cause was the respondent's poor communication and methodology over machine harvesting. The respondent demonstrated no personal intervention or individual cases except for eight employees who attended hearings. The contested minutes were signed only by the Deputy General Manager. The ultimatum principle is unknown to Kenyan law; sections 41, 44 and 45 of the Employment Act and Articles 41, 47 and 50 of the Constitution govern.
Whether the claimant is entitled to the relief sought
Partially: the court issued a declaration of unlawful termination and awarded salaries for May and June 2012, one month's salary as compensation, and terminal benefits, with computation by the Commission of Labour, but limited compensation in light of the grievants' own role in the confrontation.
The court considered that the grievants were not entirely blameless in the industrial confrontation arising from the transition to machine tea harvesting, and that relief ignoring this would result in undue reward. It therefore allowed the claim but tailored the compensation downward to one month's salary rather than the 12 months claimed in the alternative prayer.
The respondent's counter-claim for mesne profits and possession of staff housing
The counter-claim was dismissed for want of merit, but the grievants were ordered to vacate the respondent's premises within seven days.
The court found the allegations that union representatives fomented the strike were not demonstrated, so the counter-claim failed. However, having ceased employment, the grievants could not retain occupation of the respondent's housing and were ordered to vacate within seven days.
Legal principles established
#- Reliance on the South African ultimatum principle cannot displace the procedural and substantive fairness requirements of the Employment Act where employees are dismissed following an unprotected strike.
- Dismissal following a strike must comply with sections 41, 44 and 45 of the Employment Act, including individual disciplinary process and hearing.
Court orders
#- 1.A declaration that the termination of the employment of the grievants was wrongful, unfair, unprocedural and unlawful
- 2.The respondent to pay the grievants' salaries for May and the period worked in June 2012
- 3.The respondent to pay one (1) month's salary as compensation for unlawful termination of the employment of the grievants
- 4.The respondent to pay the grievants' terminal benefits due but uncollected at the time of termination
- 5.The Commission of Labour, with the involvement of the parties, to compute the amounts payable under orders (ii), (iii) and (iv)
- 6.The grievants to vacate and render vacant possession of the respondent's premises within seven (7) days of the orders
- 7.Each party to bear their own costs of the claim
- 8.The Counter-Claim dismissed for want of merit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Plantation and Agricultural Workers Union v Sotik Highlands Tea Estate Limited [2016] KEELRC 1011 (KLR)", Case Analysis (2016). Cause No. 218 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1011/eng@2016-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.