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ELRCPartially AllowedCause No. 468 of 2013· [2018] KEELRC 1254 (KLR)

John Elego & 103 others v Pressmaster Limited [2018] KEELRC 1254 (KLR)

Employment and Labour Relations Court
10 August 2018
MNMathews N. NdumaMOMaureen Onyango
5,897 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that firing striking workers without a disciplinary process was illegal, and employers must honour Return to Work Formula agreements they sign.

What this practically means

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Executive summary

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This first-instance judgment of the Employment and Labour Relations Court at Nairobi concerned a claim by John Elego and 103 other employees of Pressmaster Limited, all summarily dismissed on 3rd October 2012 following a strike over unpaid dues and poor conditions. The claimants sought notice pay, service pay, twelve months' compensation for unfair termination, underpayments, various allowances, CBA increments, damages and costs; the respondent denied liability, raised a locus standi objection, and counterclaimed for notice pay and business losses. The court held the suit was properly instituted on behalf of all claimants, dismissing the locus standi objection. On the merits, the court found the Return to Work Formula signed on 1st October 2012 bound the parties and guaranteed no victimisation; the claimants were instead locked out and dismissed en masse without any disciplinary process under section 41 of the Employment Act. The two notices the respondent relied on were held not credible. Relying on Mohammed Yakub Athman and the Kisumu Mumias Sugar decision, the court found the summary dismissal unlawful and unfair and awarded four months' salary compensation, bus fare allowance of Kshs.250 per month from January 2003, gratuity at 15 days' salary per completed year, notice pay per the CBA (one or two months depending on length of service), and the 10% CBA salary increment from September 2011. Claims for September 2012 salaries, underpayments and various allowances were dismissed for want of proof, with salaries recoverable from the Labour Office. The counterclaim was dismissed because the strike had not been declared unlawful and losses were unproved. Costs and interest were awarded to the claimants; computation was directed for court confirmation.

Key legal issues

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01

Whether the suit was properly instituted on behalf of 104 claimants

Holding

The suit was properly filed; the locus standi objection was dismissed as the procedural requirements were met.

Reasoning

Rule 4 of the ELRC (Procedure) Rules permits a suit by one party for others with a similar cause of action. Counsel filed a letter of authority containing the names of the 103 claimants, a verifying affidavit, a supporting affidavit, witness statements and particulars of each claimant's claim. All procedural requirements were satisfied, so the objection on locus standi failed.

p. 4
02

Whether the summary dismissal following the strike was lawful and fair

Holding

The summary dismissal was unlawful, unfair and in violation of the Return to Work Formula.

Reasoning

The parties signed a Return to Work Formula on 1 October 2012 guaranteeing that workers return to work without victimisation. The court found the claimants' testimony credible that they were asked to collect salaries on 2 October and report on 3 October, when they were locked out. The notices the respondent relied on were found not credible, lacking named authors or acknowledged receipt. Consistent with Mohammed Yakub Athman and Mumias Sugar, striking employees were entitled to the disciplinary process under section 41 of the Employment Act.

p. 6
03

Whether the claimants were entitled to CBA terms and increment despite being casual or contract workers

Holding

All employees, whether casual, contract or permanent, are unionsable and entitled to negotiated CBA terms including the 10% increment of September 2011.

Reasoning

The court found that casual employees who have worked over three months should be converted to permanent terms, and nothing in law bars casual employees from joining a union. The respondent's persistent victimisation of employees for union membership and participation in union elections amounted to unfair labour practice violating section 5 of the Labour Relations Act, ILO Convention 158 and Articles 36 and 41 of the Constitution.

p. 7
04

The respondent's counter claim for notice pay and business losses

Holding

The counter claim was dismissed.

Reasoning

The court has not been moved to declare the strike unlawful, and the terms of settlement were contained in the Return to Work Formula, from whose four corners the respondent could not depart to penalise the claimants. The alleged losses of Kshs.65,493,868 were also not sufficiently proved and linked to the claimants' actions.

p. 8

Legal principles established

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  • A Return to Work Formula is a binding document on all parties who concluded it, and parties cannot go outside its four corners.
  • An employee participating in a strike is entitled to the disciplinary process under section 41 of the Employment Act and section 80 of the Labour Relations Act before dismissal.
  • A suit may be instituted by one party on behalf of others with a similar cause of action, with a letter of authority and schedule of claimants.

Court orders

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  1. 1.Four (4) months salary in compensation for the unlawful and unfair termination of employment
  2. 2.Unpaid bus fare allowance at Kshs.250 per month from January 2003 to September 2012
  3. 3.Gratuity (service pay) at 15 days basic salary per completed year of service
  4. 4.Payment in lieu of notice in terms of the CBA: one month salary for service below five years, two months salary for service of five years and above
  5. 5.CBA increment of salary at 10% from September 2011 to date of dismissal, with any unpaid CBA increment of allowances included in the computation
  6. 6.Awards (a)-(e) to be computed by the Claimant, filed and served on the Respondent within 30 days of judgment, to be confirmed by the court on a date to be fixed
  7. 7.Awards to be paid with interest at court rates from date of judgment till payment in full
  8. 8.Respondent to pay costs of the suit
  9. 9.Counter claim dismissed
  10. 10.Claimants to collect unpaid September 2012 salaries from the Labour Office

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) RulesRule 4
  • Civil Procedure RulesOrder 1 Rule 8
  • Employment Actsections 41, 49(1)(c), 49(4)
  • Labour Relations Actsections 5, 80
  • Evidence Act, Cap 80 Laws of Kenyasections 107 & 108
  • Constitution of Kenya 2010Articles 27, 28, 36, 41, 47
  • ILO Convention 158

Cases cited (2)

  • Mohammed Yakub Athman & 29 others v Kenya Ports Authority
  • Mumias Sugar Co. Limited v Kenya Union Plantation Workers
    Petition No. 24 of 2016 [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court (Procedure) Rules; claims under the Employment Act, Labour Relations Act and Constitution of Kenya 2010

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, "John Elego & 103 others v Pressmaster Limited [2018] KEELRC 1254 (KLR)", Case Analysis (2018). Cause No. 468 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1254/eng@2018-08-10

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