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ELRCPartially AllowedCause No. 218 of 2015· [2016] KEELRC 1011 (KLR)

Kenya Plantation and Agricultural Workers Union v Sotik Highlands Tea Estate Limited [2016] KEELRC 1011 (KLR)

Employment & Labour Relations Court of Kenya
30 June 2016
4,812 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant union sued on behalf of 252 grievants summarily dismissed following industrial skirmishes at the respondent's tea estate in June 2012, arising from the introduction of machine tea harvesting. The claimant sought reinstatement, payment of May 2012 salaries, withdrawal of GSU and Administration Police from the premises, dialogue, and alternatively compensation. The respondent denied effecting a lock-out, contended the workers engaged in an illegal, unprotected strike warranting summary dismissal, and counter-claimed for a declaration that the strike was illegal, damages, possession of staff housing and mesne profits of Kshs 4,927,490.40. The court framed three issues: lawfulness of termination, entitlement to relief, and costs. It found that although the strike was unprotected, the respondent's methodology and communication were wanting, union participation in the commotion was not demonstrated, and the dismissal process - broadcast show-cause notices and reliance on the South African ultimatum principle - breached sections 41, 44 and 45 of the Employment Act, contested minutes having been signed unilaterally by the Deputy General Manager. Termination was declared wrongful, unfair, unprocedural and unlawful. Relief was tailored: salaries for May and June 2012, one month's salary as compensation (not the 12 months sought), and terminal benefits, with the Commission of Labour to compute amounts. The grievants were ordered to vacate the respondent's housing within seven days. The counter-claim was dismissed for want of merit, and each party was ordered to bear its own costs. Judgment delivered on 30th June 2016 by D. K. Njagi Marete, J.

Key legal issues

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01

Whether termination of the grievants' employment for participating in an unprotected strike was wrongful, unfair and unlawful

Holding

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.

Reasoning

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.

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02

Whether the claimant is entitled to the relief sought

Holding

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.

Reasoning

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.

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03

The respondent's counter-claim for mesne profits and possession of staff housing

Holding

The counter-claim was dismissed for want of merit, but the grievants were ordered to vacate the respondent's premises within seven days.

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 1.A declaration that the termination of the employment of the grievants was wrongful, unfair, unprocedural and unlawful
  2. 2.The respondent to pay the grievants' salaries for May and the period worked in June 2012
  3. 3.The respondent to pay one (1) month's salary as compensation for unlawful termination of the employment of the grievants
  4. 4.The respondent to pay the grievants' terminal benefits due but uncollected at the time of termination
  5. 5.The Commission of Labour, with the involvement of the parties, to compute the amounts payable under orders (ii), (iii) and (iv)
  6. 6.The grievants to vacate and render vacant possession of the respondent's premises within seven (7) days of the orders
  7. 7.Each party to bear their own costs of the claim
  8. 8.The Counter-Claim dismissed for want of merit

Authorities

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Legislation

  • Employment ActSections 7, 8, 41, 43, 44, 45, 46, 49
  • Constitution of Kenya, 2010Articles 41, 47, 50
  • Labour Relations ActSections 76, 80
  • Labour Relations Act of South AfricaSection 68(5); Schedule 8, Code of Good Practice: Dismissal, Section 6

Cases cited (7)

  • Kenya Union of Commercial Food & Allied Workers v Del Monte (K) Limited
    2013 eKLR
  • Kenya Plantation & Agricultural Workers Union v Carzan Flowers
    (2013) eKLR
  • Kenya Plantation & Agricultural Workers Union v Plantation Plants (K) Limited
    (2013) eKLR
  • Kenya Plantation & Agricultural Workers Union v Roseto Flowers
    (2013) eKLR
  • Mohamed Yakub Athman & 29 others v Kenya Ports Authority
    (2016) eKLR
  • Lamathe Hygience Food v Wesley Patrick Simasi Wafula & 8 others
    (2016) eKLR
  • Maseno University v Universities Academic Staff Union
    (2015) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour disputes

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.