Mohamed Yakub Athman & 29 others v Kenya Ports Authority [2016] KEELRC 1636 (KLR)

The Court found the elements of a strike under Section 2 of the Labour Relations Act present: the Claimants ceased work, acting in combination, and converged at the Head Office demanding recall of the biometric clocking system and refund of deductions. The Return-to-Work Agreement itself acknowledged a withdrawal of labour. Their violent conduct - barricading and assaulting Management Officers, hurling stones - justified dismissal under Sections 44(4) and 45 of the Employment Act regardless of legality of the strike.

The strike was called by TUC-Ke, a federation with no recognition agreement with the Respondent, over revised NHIF rates which the Respondent had no power to reverse. The subject matter was not a trade dispute between employer and employee; the High Court had already declined interim relief four days before the strike notice; there was no balloting per the Dock Workers Union Constitution; and the affiliation of the Union to TUC-Ke was unsettled. Participants therefore had no protection and could be disciplined under Section 80 of the Labour Relations Act.

Section 80 of the Labour Relations Act does not exclude Sections 41 and 45 of the Employment Act. The Respondent conceded it did not hear the Claimants, and the plea of impracticability failed: the employees were available after the strike, were de-activated from the access system, and vacancies were advertised before hearings. The employer's own Disciplinary Handbook required observance of natural justice. The Court affirmed the principle in Kenya Plantation and Agricultural Workers Union v. Roseto Flowers.

Although valid grounds existed, procedural unfairness merited compensation at 6 months' gross salary per Claimant. Reinstatement and continued occupation of staff houses were refused because valid grounds for dismissal existed and employment benefits cannot persist after cessation. Terminal benefits were payable under Section 18(4) of the Employment Act, and eviction from staff houses required at least 30 days' notice, humanely executed.