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ELRCOtherApplication dated 25th October 2016 (Cause number not stated in judgment)· [2017] KEELRC 1868 (KLR)

Kenya Plantation & Agricultural Workers Union v Finlays (K) Ltd [2017] KEELRC 1868 (KLR)

Employment and Labour Relations Court
31 January 2017
DMD.K. Njagi Marete
1,636 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Claimant Union moved the Employment and Labour Relations Court by an application dated 25th October 2016 seeking a temporary injunction restraining the Respondent from evicting a grievant tea plucker from the house allocated to him, following his summary dismissal on 8th October 2016 on allegations of incitement, and seeking referral of the intended summary dismissal to conciliation. The parties had a recognition agreement and a Collective Bargaining Agreement whose clause 17(b) provides that an employee dismissed other than for gross misconduct whose dismissal becomes a dispute is not required to leave the allotted house until the dispute is finalized. On 27th October 2016 the court issued an interim injunction restraining eviction pending determination of the application. The Respondent opposed, contending the grievant was dismissed for absenteeism and gross misconduct and relying on KPAWU v James Finlays (2014) eKLR, where the court had held that employees summarily dismissed for gross misconduct were not entitled to continued occupation under the analogous clause. In a ruling delivered on 31st January 2017, Marete J distinguished that authority, holding that it presupposed an undisputed dismissal, whereas here the dismissal was disputed; clause 17(b) therefore applied and the grievant could not be required to vacate until the dispute was resolved. Curiously, the operative disposition as worded dismissed the application with costs to the claimant, an internally inconsistent outcome given that the court's findings favoured the grievant's continued occupation.

Key legal issues

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01

Application of clause 17(b) of the Collective Bargaining Agreement to a disputed summary dismissal

Holding

The clause entitles a grievant whose summary dismissal is disputed to remain in the allotted house until the dispute is resolved; the respondent's own authority presupposed an undisputed dismissal and did not apply.

Reasoning

The respondent relied on KPAWU v James Finlays (2014) eKLR, where the court had found that where dismissal was for gross misconduct, clause 17(a) governed and continued occupation was not entitled. The court distinguished that case: it addressed dismissals not disputed by the union. Here the dismissal was expressly disputed, so clause 17(b) applied and the grievant could not be required to vacate pending resolution of the dispute.

p. 4
02

Whether the grievant's dismissal was for gross misconduct

Holding

The claimant disputed that the grievant committed incitement or gross misconduct; the disputed character of the dismissal triggered clause 17(b) protection at the interlocutory stage.

Reasoning

The claimant denied the grievant's involvement in incitement and blamed the events on the respondent, while the respondent maintained the dismissal was for absenteeism, willful disobedience and incitement amounting to gross misconduct. The court did not resolve this contested factual question at the interlocutory stage; the very existence of the dispute brought clause 17(b) into operation, entitling the grievant to remain in the house until the dispute is finalized.

p. 2

Legal principles established

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  • Under clause 17(b) of a Collective Bargaining Agreement, where an employee's summary dismissal is disputed, the employee is not required to vacate the allotted house until the dispute is finalized.

Court orders

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  1. 1.The application dated 25th October 2016 was dismissed (as stated by the court) with costs to the claimant/applicant
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes under a recognition agreement and Collective Bargaining Agreement

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, "Kenya Plantation & Agricultural Workers Union v Finlays (K) Ltd [2017] KEELRC 1868 (KLR)", Case Analysis (2017). Application dated 25th October 2016 (Cause number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1868/eng@2017-01-31

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