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ELRCAllowedCause No. 347 of 2013· [2018] KEELRC 1326 (KLR)

Kenya Engineering Workers Union v Precision Advertisement Limited [2018] KEELRC 1326 (KLR)

Industrial Court of Kenya
25 July 2018
1,230 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Kenya Engineering Workers Union claimed on behalf of two grievants, Shida Charo Mangi and Bosco Ndunda, employees of Precision Advertisement Limited who were terminated on 30th December 2009 allegedly for joining the union. The claimant asserted that the parties had no recognition agreement or negotiated CBA, that the terminations were without notice and motivated by the employees' union membership, and that earlier efforts at conciliation through the Minister of Labour failed because the respondent was uncooperative. The second grievant withdrew his claim, fearing the respondent would sabotage his new employment. The respondent did not participate in the proceedings at all despite service. The court framed three issues: whether the termination was wrongful, unfair and unlawful; whether the claimant was entitled to the relief sought; and who should bear costs. Marete J found the termination unlawful, holding that the respondent's failure to defend was a deliberate choice and that the court must protect vulnerable employees from intimidation. The court disregarded the second grievant's abandonment of his claim, which was induced by fear, and in the interest of justice extended relief to him through computation of his dues by the Commissioner of Labour. The claim was allowed in full: one month's notice pay, 21 days annual leave, three months pro rata leave, and twelve months' salary as compensation, totalling Kshs.118,346.00, with costs to the claimant.

Key legal issues

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01

Whether the termination of the grievant's employment was wrongful, unfair and unlawful

Holding

The termination of the grievants for joining the claimant union was unlawful; the respondent, though served, chose not to participate and treated even conciliation with contempt.

Reasoning

The claimant pleaded that the grievants were terminated on 30th December 2009 for joining the union after objecting to the respondent's demand that they drop union membership. The matter was undefended; the respondent was served and aware of proceedings but deliberately abstained, having also ignored the conciliator's invitations. In the absence of any rebuttal, the claimant's uncontroverted account of union-motivated termination stood unchallenged, justifying a finding of unlawful termination.

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02

Whether the claimant is entitled to the relief sought despite the second grievant's withdrawal of his claim

Holding

The claimant is entitled to the relief sought. The court ignored the second grievant's withdrawal, made for fear of the respondent's interference, and ordered computation of his dues.

Reasoning

The second grievant withdrew because he had found alternative employment and feared the respondent would sabotage it if she learned of it. The court held that a vulnerable employee intimidated into silence should not be abandoned; condoning such intimidation would nurture impunity in the workplace. It therefore made an award in his favour via computation by the Commissioner of Labour, while noting any risk of interference would be addressed when reached.

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Legal principles established

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  • An employer who terminates an employee's employment for joining a trade union, and is undefended, effects an unlawful termination entitling the employee to notice pay, leave dues and 12 months' compensation.
  • Courts should protect vulnerable employees who are intimidated into abandoning their claims, and may in the interest of justice award relief despite abandonment of the claim.

Court orders

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  1. 1.One (1) month's salary in lieu of notice of Kshs.8,500.00
  2. 2.Annual leave for 21 days of Kshs.6,865.00
  3. 3.Three (3) months pro rata leave of Kshs.981.00
  4. 4.Twelve (12) months' salary as compensation for unlawful termination of employment, Kshs.102,000.00
  5. 5.Total award of Kshs.118,346.00 to grievant Shida Charo Mangi
  6. 6.The Commissioner of Labour be and is hereby ordered to, with the involvement of the parties, compute all dues payable to grievant No.2, Bosco Ndunda, in terms of this judgment within 120 days
  7. 7.Mention on 22nd November, 2018 for a report on computation
  8. 8.The costs of this claim shall be borne by the respondent

Authorities

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Legislation

  • Employment Actsections 35, 36
  • Employment Actsection 28
Jurisdiction invoked
Industrial Court of Kenya jurisdiction over employment and labour relations disputes (Labour Relations Act/Industrial Court Act); claim on termination of employment contrary to the Employment Act, 2007

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, "Kenya Engineering Workers Union v Precision Advertisement Limited [2018] KEELRC 1326 (KLR)", Case Analysis (2018). Cause No. 347 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1326/eng@2018-07-25

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