Kenya Union of Domestic, Hotels, Educational, Institutions and Hospital Workers v Wild Waters Entertainment Park [2016] KEELRC 1618 (KLR)
The bottom line
#Kenya's Employment Court ruled that locking out workers after a signed return-to-work deal, without notice or a hearing, was unfair termination worth over Kshs. 2.5 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the grievants were unfairly terminated on 4.7.2014
The termination was unfair and unlawful within section 45 read with sections 35 and 40 of the Employment Act; the grievants had become regular employees under Rule 18 of the Regulation of Wages (Hotel and Catering Trades) Order and the lock-out/closure breached the statutory safeguards and the binding return-to-work formula.
The dispute over the strike had been mutually resolved through a written return-to-work formula witnessed by labour officers and binding under section 69 of the LRA. The respondent instead locked out the grievants. The court held the grievants had been converted to regular employees under Rule 18(2) of the Hotel and Catering Trades Order, so expiry of fixed-term contracts could not be used to evade legal obligations. No notice under section 40 or hearing under section 41 was given, rendering the dismissal unfair under section 45.
Whether the respondent could dismiss the grievants for participating in an illegal strike
No. The strike-related dispute had been mutually resolved and the respondent did not follow the disciplinary safeguards of sections 41 and 45 of the Employment Act even if discipline were permissible.
The court rejected the defence of dismissal for an illegal strike because the parties had signed a return-to-work formula witnessed by labour officers, which was binding. Even assuming discipline was available, participation in an illegal strike is misconduct under section 44, requiring fair hearing under section 41 before dismissal, which was not accorded.
Whether the grievants were entitled to the reliefs sought
Partially: each grievant received 3 months' gross salary compensation under section 49(1), one month's salary in lieu of notice, and 24 days' leave pay; claims for public holidays and severance pay were dismissed.
The court awarded compensation considering long service and the likelihood of securing alternative employment within 3 months. Notice pay was granted as prayed. Leave was awarded because the respondent produced no leave records proving utilisation or payment. The public holidays claim failed for want of particulars and severance pay was refused to avoid double benefit alongside compensation.
Legal principles established
#- A voluntary return-to-work formula concluded and signed by the parties in the presence of labour officers is binding on the employer under section 69 of the Labour Relations Act, and the employer cannot act against it.
- Under Rule 18(2) of the Regulation of Wages (Hotel and Catering Trades) Order, an employee on temporary or seasonal terms is deemed converted to regular terms of employment on completion of six months' continuous service.
- An employer alleging participation in an illegal strike as misconduct must still accord employees a fair hearing under sections 41 and 45 of the Employment Act before dismissal.
- Failure to comply with sections 40 and 41 of the Employment Act (notice and procedure for redundancy and fair hearing) renders a dismissal unfair within the meaning of section 45.
Court orders
#- 1.Declaration that the termination of the grievants' employment contracts by the respondent on 3.7.2014 and 4.7.2014 was unjust, unfair and wrongful
- 2.Compensation of 3 months' gross salary to each grievant under section 49(1) of the Employment Act
- 3.One month's (28 days') salary in lieu of notice to each grievant
- 4.24 days' leave pay to each grievant
- 5.Judgment for the claimant in the aggregate sum of Kshs. 2,520,270.00 plus costs and interest
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act (suit filed as a cause under section 12; specific provisions applied include Employment Act sections 35, 40, 41, 45 and 49(1), Labour Relations Act sections 69, 79(6) and 80, Labour Institutions Act section 63(2))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Domestic, Hotels, Educational, Institutions and Hospital Workers v Wild Waters Entertainment Park [2016] KEELRC 1618 (KLR)", Case Analysis (2016). Cause No. 310 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1618/eng@2016-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.