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ELRCPartially AllowedAmended Memorandum of Claim dated 27th November 2015· [2018] KEELRC 1259 (KLR)

Rift Valley Railways Workers Union (K) v Rift Valley Railways (K) Limited [2018] KEELRC 1259 (KLR)

Employment and Labour Relations Court
17 August 2018
2,801 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 a worker for union activities, without a hearing, was unfair and ordered the employer to pay over Kshs.725,000.

What this practically means

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Executive summary

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The claimant union, Kenya Railways Workers Union, sued on behalf of its Deputy Secretary General, David Ogega Onditi, whose employment with Rift Valley Railways was terminated on 7th July 2014. The grievant, employed since 1985 and registered as Deputy Secretary General in 2007, had been suspended in 2008 for union activities, suspended again in 2014, and transferred to Tororo Depot in Uganda, a transfer the union successfully stayed in court. After the stay lapsed, he was sent on compulsory leave pending the court case, then dismissed for alleged desertion of duty without any disciplinary hearing. The respondent, despite filing a response, failed to attend hearing, and its case was closed for non-attendance; only affidavits stood as its evidence. The court held that the dismissal was procedurally unfair for want of a hearing under Section 41 of the Employment Act, and substantively unfair because no valid reason was proved, the desertion allegation being unfunded since the same Chief Human Resource Officer who sent the grievant on leave later accused him of desertion. The dismissal was found to be linked to the grievant's union activities and to the union's legal proceedings challenging the transfer, contrary to Section 46 of the Employment Act, Section 4 of the Labour Relations Act, and Articles 36 and 41 of the Constitution. The court awarded notice pay, unpaid salary, leave and bonuses computed under the 2005 concessioning CBA, plus 12 months' salary as compensation, totalling Kshs.725,447.70 with interest. Gratuity was rejected as the grievant had received pension, and the damages claim was dismissed as unproved. Costs of Kshs.100,000 were awarded to the claimant.

Key legal issues

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01

Whether the termination of the grievant was procedurally and substantively fair

Holding

The termination was unfair both procedurally and substantively: the grievant was not given a hearing under Section 41 and no valid reason was proved, the desertion allegation being unfunded as he had reported back to work and been sent on leave by the same officer who later accused him of desertion

Reasoning

The court found the grievant had reported back to work after the stay orders and had been directed on compulsory leave pending the court case by the Chief Human Resource Officer. The same officer later wrote the desertion letter, which was therefore unfunded. The grievant was never subjected to a disciplinary hearing as required by Section 41 of the Employment Act, and the respondent, having not called any witness, failed to discharge the burden of proving a valid reason under Sections 43 and 47(5).

p. 4
02

Whether the termination was on account of union activities and victimisation for filing legal proceedings

Holding

The dismissal was linked to the grievant's suspension for union activities and to the claimant union's suit challenging his transfer, contrary to Section 46 of the Employment Act, Section 4 of the Labour Relations Act and Articles 36 and 41(2)(c) of the Constitution

Reasoning

The court traced the strained relations between the union and the respondent, the grievant's earlier suspension with five other union officials for strike-related conduct, the disputed transfer to Tororo which the union litigated, and the direction to take leave pending the case. It concluded the dismissal was connected to the suspension and to the union's legal proceedings, amounting to discrimination on grounds of union activities and victimisation prohibited by statute and the Constitution.

p. 5
03

What remedies are payable to the grievant

Holding

Notice pay, unpaid salary, leave due and bonuses were awarded per the CBA, 12 months' salary compensation was awarded, but gratuity was rejected because the grievant received pension and damages were dismissed as unproved

Reasoning

The court relied on the CBA between Kenya Railways Workers Union and Kenya Railways Corporation signed on 24th December 2005 upon concessioning to Rift Valley Railways, finding no later CBA existed. It computed the contractual dues, awarded the statutory maximum compensation of 12 months' salary considering all circumstances, but declined gratuity because the grievant confirmed receiving pension, and dismissed the damages claim for lack of submissions and proof.

p. 6

Legal principles established

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  • An employee must be given a fair hearing before termination under Section 41 of the Employment Act, and the employer bears the burden of proving valid reason under Section 43 and Section 47(5)
  • Termination of an employee on grounds of union activities or for filing legal proceedings against the employer is prohibited and constitutes unfair termination and discrimination

Court orders

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  1. 1.A finding and holding that the termination of the grievant was unfair
  2. 2.Award of one month's salary in lieu of notice of Kshs.44,867.70
  3. 3.Award of unpaid salary for May, June and 7 days of July 2014 of Kshs.98,607.00
  4. 4.Award of leave due for 6 days of Kshs.8,973.00
  5. 5.Award of bonuses for February and March of Kshs.34,600.00
  6. 6.Award of 12 months' salary compensation of Kshs.538,400.00, totalling Kshs.725,447.70
  7. 7.Interest on the salary and bonuses (prayers ii and iii) from 27th November 2015, and interest on the rest of the claim from date of filing suit
  8. 8.The decretal sum to be subject to deduction of PAYE but the interest not subject to PAYE deductions
  9. 9.The respondent to pay the claimant costs of Kshs.100,000 to cover reasonable expenses of the suit

Authorities

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Legislation

  • Employment ActSections 41, 43, 46, 47(5)
  • Labour Relations Act, 2007Section 80(1); Section 4
  • Constitution of KenyaArticles 36 and 41(2)(c)
  • Kenya Railways Corporation Act (Cap 397)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act and Labour Relations Act

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, "Rift Valley Railways Workers Union (K) v Rift Valley Railways (K) Limited [2018] KEELRC 1259 (KLR)", Case Analysis (2018). Amended Memorandum of Claim dated 27th November 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1259/eng@2018-08-17

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