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ELRCPartially AllowedCause No. 566 of 2015 ( Memorandum of Claim lodged 11 December 2015)· [2017] KEELRC 1712 (KLR)

Transport Workers Union (K) v Kimilili Hauliers Co Ltd [2017] KEELRC 1712 (KLR)

Employment and Labour Relations Court
3 March 2017
1,500 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that workers without written contracts were unfairly terminated, but threw out their underpayment claims for being raised too late.

What this practically means

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Executive summary

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The Transport Workers Union (K) claimed on behalf of six Grievants that Kimilili Hauliers Co. Ltd unfairly terminated their employment on 14 January 2014 and underpaid them during employment. The Respondent maintained that the Grievants voluntarily resigned, were paid final dues, complied with prescribed minimum wages, and that the underpayment claim was res judicata given Nakuru Cause No. 399 of 2013 between the same parties. Only one Grievant testified for the Union; the Respondent called its Human Resources Manager. The Court framed four issues: res judicata, underpayment, unfair termination and remedies. It held the underpayment claim should have been raised in the earlier Cause and that litigating it piecemeal was an abuse of process; in any event, the Union failed to prove actual earnings against the applicable Wages Orders. On termination, the Court found that absent written contracts under sections 9 and 10 of the Employment Act, 2007, the engagements were of indefinite duration, engaging sections 35, 40, 41, 43 and 45. The Respondent demonstrated no compliance, and its HR Manager gave contradictory testimony - asserting both resignation and completion of a project - so the Court found the Grievants were unfairly terminated and did not resign. The Court awarded each Griavant compensation equivalent to three months' gross wages (to be computed by the Respondent) and ordered issuance of certificates of service within 21 days. Pay in lieu of notice, unutilised leave, underpayments and severance pay were declined or dismissed. Each party was to bear its own costs. The Court criticised the confused pleadings and the Union representative's conduct of the case.

Key legal issues

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01

Res judicata / abuse of process regarding underpayment claim

Holding

The underpayment cause of action, though partly not pleaded in Nakuru Cause No. 399 of 2013, ought to have been included there; advancing it piecemeal in the present Cause is an abuse of process.

Reasoning

The earlier Cause concerned failure to comply with the Wages General Amendment Order 2010 for the period May 2010 to April 2011. The circumstances of the broader underpayment claim were within the Union's and Grievants' knowledge when the earlier Cause was filed. All grounds should have been litigated then rather than splitting the cause of action.

p. 2
02

Unfair termination

Holding

The Grievants were unfairly terminated; they did not resign.

Reasoning

No contracts were issued under sections 9 and 10 of the Employment Act, so the engagements were of indefinite duration, attracting sections 35, 40, 41, 43 and 45. The Respondent did not demonstrate compliance with these provisions. Its HR Manager's contradictory testimony - that the Grievants resigned while also asserting the project ended - undermined its case; no evidence of redundancy compliance under section 40 was tendered.

p. 3
03

Remedies for unfair termination

Holding

Each Grievant awarded the equivalent of 3 months gross wages as compensation, to be computed by the Respondent; certificates of service to be issued within 21 days; other heads of relief declined or dismissed.

Reasoning

Compensation was calibrated to lengths of service averaging 4 years. Since gross wages were not proved but were within the parties' knowledge, the Respondent was directed to compute and pay. Certificates of service are a statutory right; the Respondent's attempt to introduce them through submissions was improper as they are matters of evidence.

p. 3

Legal principles established

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  • Where no written contracts of employment are issued, employment is presumed to be for an indefinite duration and the protections of sections 35, 40, 41, 43 and 45 of the Employment Act apply on separation
  • A party should not split causes of action that were within its knowledge and ought to have been litigated in an earlier suit; doing so is an abuse of the court process
  • Pleading figures is not enough to prove a claim for underpayment; the claimant must establish actual earnings and entitlement under the respective Wages Orders

Court orders

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  1. 1.Declaration that the Grievants did not resign but were unfairly terminated from employment
  2. 2.Respondent to compute and pay each Grievant the equivalent of 3 months gross wages as compensation
  3. 3.Respondent to issue each Grievant a certificate of service within 21 days
  4. 4.Each party to bear own costs
  5. 5.Other heads of relief, save as stated, dismissed

Authorities

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Legislation

  • Employment Actsections 9, 10, 35, 40, 41, 43, 45
  • Wages General Amendment Order2010
  • Regulation of Wages Ordersvarious

Cases cited (1)

  • Transport Workers Union (K) v Kimilili Hauliers Co. Ltd
    Nakuru Cause No. 399 of 2013
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (employment and labour relations dispute)

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, "Transport Workers Union (K) v Kimilili Hauliers Co Ltd [2017] KEELRC 1712 (KLR)", Case Analysis (2017). Cause No. 566 of 2015 ( Memorandum of Claim lodged 11 December 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1712/eng@2017-03-03

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