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ELRCDismissedELRC Cause No. 329 of 2016· [2018] KEELRC 24 (KLR)

Fancy Kirui v Regional Royal Transmission Co. Ltd [2018] KEELRC 24 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
2 October 2018
6,013 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled employees who refuse mandatory written employment contracts cannot later claim unfair termination or compensation.

What this practically means

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Executive summary

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This was a test suit under a consent of 16-18 July 2018, elected from 19 consolidated ELRC causes against Regional Royal Transmission Co. Ltd, all filed by the same advocate and arising from the same cause of action. The claimant, employed as a labourer in October 2015 at Kshs.12,000 per month, sought a declaration of unlawful termination, notice pay, leave, public holiday, rest day, house allowance and gratuity claims, compensation under section 49(1)(c) of the Employment Act and a certificate of service. By consent of 13 June 2018 several heads were conceded, leaving notice pay and unfair termination for determination. The claimant alleged that on 17 November 2015 the respondent unlawfully locked out employees for union activity, in breach of Article 41 of the Constitution and section 45 of the Employment Act. The respondent pleaded cash flow problems, a temporary lay-off, and a requirement that employees sign new written contracts; those who signed remained employed, while the claimant, on union advice, refused and remained out of work. Holding that a lock-out must exist within a trade dispute and not be intended to finally terminate employment, and drawing on South African authority on the asymmetry between the rights to strike and to lock out, the court found the respondent's conduct lawful: it was seeking to comply with the mandatory requirement of section 10 of the Employment Act to issue written contracts. The claimant frustrated own employment; the respondent could not be held liable. The suit was dismissed with each party bearing own costs.

Key legal issues

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01

Whether there was a lockout within the meaning of section 2 of the Employment Act and Part 10 of the Labour Relations Act

Holding

There was no unlawful lockout; the closure of the gates was to compel employees to sign written contracts, a lawful purpose, and any lockout was lawful

Reasoning

The court analysed the statutory definition of lock-out, which requires a trade dispute and a purpose of compelling acceptance of a demand, not final termination of employment. Part X of the Labour Relations Act sets out when a lock-out is protected. The respondent's closure was to comply with section 10 of the Employment Act requiring written contracts. The claimant refused to sign and thus frustrated own employment; the union's advice not to sign caused the loss of employment.

p. 7
02

Whether there was unfair termination of employment

Holding

There was no termination of employment by the respondent; the claimant remained out of work by choice after refusing to sign a written contract

Reasoning

The evidence showed the respondent had cash flow problems, laid off employees from 10 November 2015, and on resumption required all employees to sign contracts. Those who signed remained employed. The claimant, advised by the union, declined to sign and was locked out. The respondent met its obligation under section 10 of the Employment Act to issue written terms, and cannot be held liable. The union's wrong advice is where the remedy lies.

p. 8
03

Whether the remedies claimed (notice pay, compensation under section 49) are due

Holding

No remedies are due since there was no unfair termination or unlawful lockout

Reasoning

Having found the loss of employment self-inflicted and not an unfair termination or unlawful lockout, the statutory remedies of notice pay and compensation under section 49 of the Employment Act do not arise. The consent orders conceding pro-rata leave, public holidays, rest days and house allowance had already resolved those heads.

p. 8

Legal principles established

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  • A lock-out must exist within a trade dispute and must not be intended to finally terminate employment; a lock-out to compel employees to sign contracts required by section 10 of the Employment Act is lawful.
  • Where employment commences on oral terms, the employer is required to issue a written contract of employment not later than two months after commencement, and this duty is mandatory and cannot be negated by agreement.
  • The Constitution grants workers the right to strike but no corresponding right to a lock-out; asymmetrical treatment of strikes and lock-outs is constitutionally legitimate.

Court orders

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  1. 1.The suit (test case) is dismissed
  2. 2.Each party shall bear own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41(1) and (2)
  • Constitution of Kenya, 2010Article 28
  • Constitution of Kenya, 2010Article 162(3)
  • Employment Act, 2007section 2
  • Employment Act, 2007section 9
  • Employment Act, 2007section 10(1)
  • Employment Act, 2007section 37
  • Employment Act, 2007section 45
  • Employment Act, 2007section 49(1)(c)
  • Labour Relations Act, 2007section 2
  • Labour Relations Act, 2007section 76
  • Labour Relations Act, 2007Part 10
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 24

Cases cited (7)

  • Kimilu Muywoki versus Elephant Steel Industries Ltd
    [2017] eKLR
  • Kenya Plantation 7 Agricultural Workers Union versus Maji Mazuri Flowers Ltd
    [2012] eKLR
  • Said Ndege versus Steel Makers Ltd
    [2014] eKLR
  • Bezra Nyamweya Motari versus Kanini Haraka Enterprises Ltd
    [2016] eKLR
  • Ex parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa 1996
    1996 (4) SA 744 (CC)
  • PUTCO (PTY) Limited & Transport & Allied Workers of South Africa versus South Africa Passenger Bargaining Council
    JA 106 of 2013
  • Chemical Workers Industrial Union versus Plascon Decorative (Inland) (Pty) Ltd (CWIU)
    (1999) 20 ILJ 321 (LAC)
Jurisdiction invoked
Article 162(3) of the Constitution read with the Employment and Labour Relations Court Act and Rule 24 of the Employment and Labour Relations Court (Procedure) Rules, 2016

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Fancy Kirui v Regional Royal Transmission Co. Ltd [2018] KEELRC 24 (KLR)", Case Analysis (2018). ELRC Cause No. 329 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/24/eng@2018-10-02

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