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ELRCAllowedCause No. 619 (N) of 2009· [2016] KEELRC 1188 (KLR)

Tailors And Textile Workers Union v Wild Elegance Fashions Limited [2016] KEELRC 1188 (KLR)

Employment and Labour Relations Court of Kenya
6 May 2016
1,551 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that firing ten workers as a group without proving each person's fault was unfair, awarding them over Kshs 1.2 million.

What this practically means

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Executive summary

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The Tailors and Textile Workers Union sued Wild Elegance Fashions Limited on behalf of ten grievants, machine operators earning Kshs 8,604 monthly, who were summarily dismissed on 11th April 2006 for failing to meet a production target set the same day. The claimant sought days worked, house allowance, underpayment of wages, notice pay, leave, travelling allowance, gratuity and compensation for unlawful dismissal. The Respondent contended the grievants were casuals dismissed for lawful reasons, relying on Section 14(5) of the repealed Employment Act, cap 226, and on clause 16 of the CBA; one grievant, Mathuku Musyoka, was alleged to have absconded for 14 days. The Respondent's own witness conceded that some grievants worked on finished products and had completed their part of the work, and that he could not produce records of the disputed order. The court found no notice to show cause was given, that the abscondment allegation was unsupported and contradicted, and that the dismissal amounted to unlawful collective punishment. All grievants except Emmanuel Omondi had served over four months and were converted to permanent employees under clause 16 of the CBA, with pre-CBA service counting as continuous. The court awarded terminal benefits per the unchallenged tabulation totalling Kshs 1,264,360, plus compensation of 4, 8 or 12 months' salary scaled to length of service, interest at court rates from filing, certificates of service within 30 days, and costs to the Claimant.

Key legal issues

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01

Whether the summary dismissal was lawful and fair

Holding

The dismissal was unlawful and unfair: there was no good reason to summarily dismiss all grievants, no notice to show cause was given, and the abscondment allegation was unsupported.

Reasoning

RW1 conceded some grievants worked on finished products and had completed their part, undermining the failure-to-meet-target rationale. No notice to show cause was issued. The 14-day abscondment claim against Musyoka lacked documentary support and was contradicted by the fact he was at work on 11 April 2006. The claimant proved unlawful, unfair termination on a balance of probability.

p. 2
02

Status of the grievants - casual or permanent

Holding

All grievants except Emmanuel Omondi (two months' service) had served over four months and were converted to permanent employees under clause 16 of the CBA.

Reasoning

The CBA provided that a casual who had worked four months converted to a permanent employee. The grievants served continuously for periods ranging from 2 months to 14 years, and service preceding the CBA's commencement did not negate continuity.

p. 3
03

Quantum of terminal benefits and compensation

Holding

Terminal benefits as per the unchallenged tabulation were awarded, plus compensation scaled to length of service (4, 8 or 12 months' salary).

Reasoning

The tabulation of terminal benefits was sufficiently proved and the Respondent produced no counter tabulation. Compensation took into account length of service, the similar summary dismissal circumstances, inability to reinstate after many years, and denial of certificates of service.

p. 3

Legal principles established

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  • Collective punishment of employees without establishing individual liability is unlawful and unfair and contrary to the tenets of a fair hearing.
  • Continuous service before the commencement of a CBA counts towards qualification for permanent employment under the CBA.

Court orders

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  1. 1.Award of terminal benefits per the list of tabulation to each of the ten grievants, totalling Kshs 1,264,360
  2. 2.Compensation for unlawful and unfair dismissal of 4 months' salary for those serving 2-8 months, 8 months' salary for 2-4 years, and 12 months' salary for the grievant with 14 years' service
  3. 3.Interest at court rates from date of filing suit until payment in full
  4. 4.Respondent to provide certificates of service to the grievants within 30 days from date of judgment
  5. 5.Costs of the suit to the Claimant
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute referred following conciliation at the Ministry of Labour

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, "Tailors And Textile Workers Union v Wild Elegance Fashions Limited [2016] KEELRC 1188 (KLR)", Case Analysis (2016). Cause No. 619 (N) of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1188/eng@2016-05-06

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