Communication Workers Union of Kenya v Telkom Kenya Limited [2018] KEELRC 533 (KLR)
The bottom line
#Kenya's Employment Court ruled that once an employer pays discretionary bonuses, it cannot pay union members far less than non-union colleagues for the same work.
What this practically means
#Executive summary
#Key legal issues
#Whether trade union membership is a prohibited ground of discrimination under Article 27(4) and (5) of the Constitution
It is not; the claim under Article 27(5) was misconceived
Article 27(4) lists specific grounds including race, sex, pregnancy, health status, ethnic or social origin and others, but not trade union membership. Article 27(5) applies the grounds specified or contemplated in clause (4) to individual actors. Since trade union membership is not mentioned nor contemplated, the claim founded on Article 27(5) fails, a conclusion the court considered conceded by the claimant's own submissions on the parallel grounds in section 5(a) of the Employment Act.
Whether payment of a token bonus of Kshs. 2,000 to union members while non-union but unionisable employees received 47.5% of salary constituted discrimination and unfair labour practice
Yes; it contravened section 5(2) and (3) of the Labour Relations Act, section 5(2) of the Employment Act, and Article 41(1) and 41(2)(c) of the Constitution
The CBA (clause 36) incorporated the respondent's Human Resource Policy Manual, which provided for discretionary performance-based bonuses. The employer conceded bonus payment was based on company-wide, departmental and individual performance, and union members were subject to the same performance appraisal system. Unionisable non-union employees like Ruth Adhiambo Ongadi received Kshs. 36,364 (47.5% of salary) while union member John Ochola Ndolo in the same category received Kshs. 2,000. The only distinguishing factor was union membership, and no objective justification was established. The discriminate exercise of discretion was thus an unfair labour practice and unconstitutional.
Whether the claimant was entitled to the remedies prayed for
A declaration and an order to pay outstanding bonuses per the HR Policy Manual were granted; general damages for breach of the right to picket were refused; 75% costs awarded
The declaration followed from the findings of statutory and constitutional violation. The order to pay outstanding bonuses was granted because the claimant's members were entitled to bonuses within the policy provisions. The picket damages claim failed as it was outside the matters referred by the conciliator and was misconceived. Given the continuing employment relationship, only 75% of costs were awarded to foster amicable industrial relations.
Legal principles established
#- Where an employer has a discretionary bonus policy, once the employer exercises the discretion to pay bonus, the exercise is constrained by constitutional and statutory anti-discrimination and fair labour practice provisions and cannot be used to advantage non-union employees over union members.
- A CBA incorporating company policies (including the Human Resource Policy Manual on bonus) is binding on all unionisable employees under section 59(1) and (3) of the Labour Relations Act, whether or not they are union members or have resigned from the union.
- Rights conferred by section 5(2) of the Employment Act and section 5(2) and (3) of the Labour Relations Act are incorporated into the Bill of Rights by virtue of Article 19(3)(b) of the Constitution, and their violation amounts to a constitutional violation read with Article 41.
Court orders
#- 1.Declaration that the respondent's failure to pay members of the claimant the due bonuses per prevailing policy contravened section 5(2) of the Employment Act, 2007 and section 5(2) and (3) of the Labour Relations Act, 2007, amounting to violation of Article 41(1) and (2)(c) of the Constitution
- 2.The respondent to pay all outstanding bonuses to claimant's union members in accordance with its Human Resource Policy Manual by 31.12.2018, failing which interest at court rates from the date of judgment till full payment; claimant to compute quantum and file and serve within 7 days for recording on a convenient mention date
- 3.The respondent to pay 75% of the claimant's costs of the suit
- Jurisdiction invoked
- Dispute referred following statutory conciliation under section 73 of the Labour Relations Act, 2007; Labour Relations Act and Employment Act provisions invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Communication Workers Union of Kenya v Telkom Kenya Limited [2018] KEELRC 533 (KLR)", Case Analysis (2018). Cause No 2105 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/533/eng@2018-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.