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ELRCDismissedMemorandum of Claim dated 8th August 2013, amended 26th May 2014 (Employment and Labour Relations Court)· [2018] KEELRC 379 (KLR)

Walter Mocha Ongeri & another v Airside Limited (Swissport Kenya) & another [2018] KEELRC 379 (KLR)

Employment and Labour Relations Court
14 December 2018
LNLINNET NDOLOMOMAUREEN ONYANGO
2,534 words in judgment
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The bottom line

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Kenya's Employment Court upheld Swissport's dismissal of two workers over an unannounced union visit, finding valid grounds and a fair disciplinary process.

What this practically means

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Executive summary

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The Claimants, employed by the Respondent as a Security Agent (from 1st August 2002) and Warehouse Operator 1 (from 8th September 2008), sued for wrongful dismissal after being summarily dismissed (1st Claimant) and terminated (2nd Claimant) in July 2013. The dispute arose from a visit to the Respondent's offices on 27th June 2013 by the Claimants, acting as shop stewards and interim officials of the proposed Kenya Aviation Workers Union (KAWU), without an official appointment. An altercation ensued, union promoters were evicted, and KAWU officials later barricaded the entrance. The Respondent, which had a Recognition Agreement with Aviation and Airport Workers Union (K) and had declined engagement with the unrecognised KAWU, issued show cause letters and conducted a disciplinary hearing before dismissing the Claimants for gross misconduct. The Claimants alleged the dismissal was for their trade union activities, contrary to Article 41 of the Constitution, the Employment Act, the Labour Relations Act and ILO Conventions, and sought reinstatement or, in the alternative, pecuniary loss and maximum compensation. The Court framed two issues: whether the dismissal and termination were lawful and fair, and whether the Claimants were entitled to the remedies sought. Applying Sections 43, 45(7) and 47(5) of the Employment Act and the range of reasonable responses test drawn from the Court of Appeal's decision in Reuben Ikatuka, the Court held there were valid grounds for dismissal given the Claimants' unannounced approach, and that Section 41 procedural fairness had been met through show cause letters, responses and a disciplinary hearing. The entire claim was dismissed with each party bearing their own costs. Judgment signed at Malindi on 6th December 2018 by Linnet Ndolo, J and delivered at Nairobi on 14th December 2018 by Maureen Onyango, J.

Key legal issues

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01

Whether the dismissal and termination were substantively fair (valid reason)

Holding

Valid grounds for dismissal and termination existed under the range of reasonable responses test

Reasoning

The Court found there was an incident on 27th June 2013 at the Respondents' premises involving the Claimants and officials of a proposed trade union who had not secured an official appointment. The parties conflicted on the nature of the incident, but the unannounced visit gave the employer reason for concern. Applying the range of reasonable responses test, the Court held the dismissal fell within the band of reasonable responses available to a reasonable employer.

p. 4
02

Whether the disciplinary procedure complied with Section 41 of the Employment Act

Holding

Procedural fairness requirements under Section 41 were met

Reasoning

The Claimants were issued show cause letters, responded to them, and were invited to a disciplinary hearing where they made representations. On that account the Court found the Section 41 procedural fairness requirements had been availed. The Claimants' allegations of a sham hearing, inadequate preparation time, denial of mitigation and appeal did not prevail on the evidence.

p. 4
03

Whether the dismissal was on account of trade union activities in violation of Article 41 of the Constitution and the Labour Relations Act

Holding

Not upheld; the Claimants failed to prove wrongful dismissal or unfair termination

Reasoning

The Claimants alleged victimisation for trade union activities, invoking Article 41 of the Constitution, Sections 4 and 5 of the Labour Relations Act and ILO Conventions. The employer maintained a Recognition Agreement with AAWU and had declined KAWU's engagement for lack of recognition. The Court grounded its decision on the incident of 27th June 2013 and did not find that the dismissal infringed the Claimants' freedom of association.

p. 4

Legal principles established

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  • The burden on an employer under Section 43 of the Employment Act is to establish a valid reason that would cause a reasonable employer to terminate employment, applying the range of reasonable responses test
  • Under Sections 43 and 47(5) of the Employment Act, the employer must prove reasons for termination while the employee must prove that unfair termination occurred

Court orders

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  1. 1.The Claimants' entire claim fails and is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 44(4)(d & e)
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 46
  • Employment Act, 2007Section 47(5)
  • Labour Relations Act, 2007Sections 4 and 5
  • ILO Convention No. 135 on Protection of Workers
  • ILO Convention No. 111 on Freedom of Association
  • ILO Convention No. 87 on Discrimination

Cases cited (1)

  • Reuben Ikatuka & 17 others v Commanding Officer British Army Training Unit Kenya & another [2017] eKLR
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (trade dispute/unfair termination claim)

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, "Walter Mocha Ongeri & another v Airside Limited (Swissport Kenya) & another [2018] KEELRC 379 (KLR)", Case Analysis (2018). Memorandum of Claim dated 8th August 2013, amended 26th May 2014 (Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/379/eng@2018-12-14

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