Kenya Scientific Research International Technical and Institutions Workers Union v Black and Beauty Products & another [2018] KEELRC 477 (KLR)
The bottom line
#Kenya's Employment Court confirmed unions can sue for members without a recognition agreement and that dismissing workers without a hearing is unfair.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the trade union
The union had locus standi to represent the grievants by virtue of their membership, despite the absence of a recognition agreement
The court distinguished recognition agreements (necessary only for collective bargaining) from the right of a union to represent its members individually. Membership confers the right to representation. The union had annexed check-off forms and receipts for union dues and a pending recognition dispute (Cause No. 1683 of 2014). Registration alone would not grant automatic locus, but membership sufficed here.
Employment status of the 2nd grievant
The 2nd grievant, whose contract subsisted over four years, was a monthly contract employee entitled to protection accorded to permanent employees
Relying on section 37 of the Employment Act and the Court of Appeal's guidance in Rashid Odhiambo Allogoh v Haco Industries, the court held that the conversion provision protects employees whose labour is used without regularising their employment. The 2nd grievant's 2-month renewable contract subsisted over four years with rotation; it was immaterial that he worked on rotation, and he could not be treated as a casual employee.
Wrongful and unfair termination of the 1st grievant
The 1st grievant's summary dismissal was unfair as the offence was not stated and he was not given a hearing
Section 43 requires the employer to prove valid reasons, and section 41 mandates an explanation and hearing before termination on grounds of misconduct. RW2 admitted the 1st grievant was a permanent employee terminated over an alleged offence on 2nd October 2012, yet CW1 testified the offence was never stated and he was never given a letter or opportunity to defend himself. Both substantive fairness and procedure failed.
Alleged absconding by the 2nd grievant
The respondents failed to prove that the 2nd grievant absconded duty; his employment was unfairly terminated
RW1 testified he never terminated the 2nd grievant's employment and that the grievants were told to report back on a certain day. However, CW2 testified they were told to go home and that the 2nd Respondent would call them to inform them when to report, which never happened. RW1 conceded he was not privy to occurrences in the 2nd Respondent's office, so absconding was not proved.
Entitlement to terminal dues and compensation
The 1st and 2nd grievants were awarded notice pay, salary for days worked, accrued leave and compensation under section 49; severance pay refused
Having found unfair termination, the court awarded payment in lieu of notice (holding the 2nd grievant entitled to 28 days' notice under section 35(1)(c) notwithstanding a contractual one-week notice clause), salary for days worked in October, accrued leave based on the respondents' records, and 10 and 12 months' salary respectively as compensation for long service under section 49. Severance pay was refused as a redundancy-only remedy.
Legal principles established
#- The right to representation is acquired by membership; a union need not have a recognition agreement to represent its members in court
- A contract employee engaged for more than three months is converted to regular employment under section 37 of the Employment Act and enjoys protections under section 35
- An employer must prove valid reason and fair procedure; failure to hear an employee renders termination unfair
Court orders
#- 1.Declared the termination of employment of the 1st and 2nd grievants unfair
- 2.Awarded the 1st Grievant (Stephen Maina Kinyua) one month's salary in lieu of notice Kshs.10,300; 3 days worked in October Kshs.1,039.90; accrued leave 24.5 days Kshs.9,705.80; total Kshs.21,045.70
- 3.Awarded the 2nd Grievant (Shem Kedogo Lisamadi) one month's salary in lieu of notice Kshs.8,200; 8 days worked Kshs.2,523.10; accrued leave 6 days Kshs.1,776.60; total Kshs.12,499.70
- 4.Awarded the 1st Grievant 10 months' salary as compensation for unfair termination, Kshs.103,000
- 5.Awarded the 2nd Grievant 12 months' salary as compensation, Kshs.98,400
- 6.Awarded the claimant costs in the sum of Kshs.50,000 to cater for all disbursements and expenses of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Labour Relations Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Scientific Research International Technical and Institutions Workers Union v Black and Beauty Products & another [2018] KEELRC 477 (KLR)", Case Analysis (2018). Employment Cause (as stated in judgment; parties described as claimant/grievants against 1st and 2nd Respondents). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/477/eng@2018-12-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.