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ELRCDismissedCause Number 295 of 2014· [2016] KEELRC 1810 (KLR)

Elvis Isangi Mwandembo & 71 others v Devki Steel Mills Limited & another [2016] KEELRC 1810 (KLR)

Industrial Court at Mombasa
8 July 2016
4,293 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court dismissed 72 workers' claims against Devki Steel Mills and their union, holding that agreements signed by shopstewards after a strike bound the workers.

What this practically means

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Executive summary

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Seventy-two claimants, members of the Kenya Engineering Workers Union, sued their former employer Devki Steel Mills Limited and their union after their positions were declared redundant on 5th May 2014. They sought terminal dues, notice pay, leave, allowances and 12 months' compensation for unfair termination totalling Kshs. 28,519,987 against the employer, and general damages against the union for breach of its obligations. The employer alleged the claimants engaged in an illegal strike over reduced working hours occasioned by raw-material shortages, and that a tripartite Return-to-Work Agreement signed by their Shopstewards, management and Labour Officers lawfully ended their employment. The Court found the claimants were in a wildcat strike on 5th May 2014, engaging no grievance mechanisms. It held that the Return-to-Work Agreement, though 'muddled' and ambiguous, was signed by Shopstewards with mandate to bind the claimants, and that the claimants left employment through a murky but consensual process. Redundancy could not lawfully flow from strike action, but the document's defects conferred no benefit on any party. The union was not in breach: it sent a competent Disputes Officer whom the claimants chased away, and Shopstewards filled the representational role. The Court also found claimants lacked continuity of service due to the employer's cyclic closures. The entire claim was rejected with no order on costs.

Key legal issues

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01

Whether the redundancy/termination was unfair and unlawful

Holding

Not unfair - the Claimants left employment through a consensual process fully represented by their Shopstewards, following their own illegal strike

Reasoning

The Court found the Claimants engaged in a wildcat strike without notice or union involvement. A tripartite consultative meeting produced a Return-to-Work Agreement signed by Shopstewards whose mandate bound the Claimants. Though the agreement was ambiguous and poorly drafted, its defects should not confer benefit on any party. The claim for unfair termination failed under Section 47 of the Employment Act.

p. 9
02

Whether the Union breached its duty of fair representation

Holding

No breach - the Union sent a competent Disputes Officer whom the Claimants rejected; Shopstewards represented them

Reasoning

The Union was not obliged to send elected Branch Officials; its employed Disputes Officer could act for it. The Claimants themselves initiated a wildcat strike and chased away the Union's representative. Shopstewards, as shop-floor representatives of the Union, filled the representational role, so no breach of the contract of mandate was shown.

p. 9
03

Continuity of service for terminal dues computation

Holding

Claimants were not in continuous service; service was interrupted by the employer's cyclic closures

Reasoning

The employer closed and reopened several times (2008, 2010, 2013) for want of raw materials, re-engaging some previous employees. Claimants failed to account for the periods when the employer was not in operation, so claims for service years, leave, public holidays and house allowances premised on uninterrupted service could not stand.

p. 8

Legal principles established

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  • A trade union owes its members a contract of mandate and can be liable in damages for breach of its duty of fair representation, but where a competent representative is availed and rejected by members, the duty is discharged
  • Redundancy is loss of employment by involuntary means through no fault of the employee and cannot be a consequence of strike action
  • What Shopstewards representing unionisable employees sign in a collective consultation binds those employees

Court orders

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  1. 1.The Claimants' claims for compensation for unfair termination, terminal dues and general damages are rejected in their entirety
  2. 2.No order on costs

Authorities

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Legislation

  • Employment ActSections 2? (2007 Act generally), Sections 40 and 47
  • Labour Relations ActSection 2
  • Constitution of KenyaArticle 41
  • ILO Convention Number 1581982

Cases cited (2)

  • Mohammed Yakub Athman & 29 others v. KPA
    [2016] e-KLR
  • Seth Panyako v. KUDHEIHA
    [2013] e-KLR
Jurisdiction invoked
Employment and labour relations dispute under Article 162(2) of the Constitution establishing the Industrial Court (court not explicitly stated in excerpt)

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, "Elvis Isangi Mwandembo & 71 others v Devki Steel Mills Limited & another [2016] KEELRC 1810 (KLR)", Case Analysis (2016). Cause Number 295 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1810/eng@2016-07-08

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