National Union of Water And Sewerage Employees & Lake Victoria North Water Services Board Kakamega-Busia Water Supply [2018] KEELRC 1436 (KLR)

Section 41 of the Employment Act requires a fair hearing before dismissal and Section 43 requires the employer to prove reasons; under Section 45(2) non-compliance renders dismissal unfair. RW1 admitted she was not at the meeting giving rise to the dismissal. The grievants were never taken through any disciplinary process or asked to respond to the charges. Their evidence that they had permission to attend union hearings was unrebutted, and performance accusations were unsupported by any prior evidence. Past warning letters from 2010-2013 had lapsed under Rule 16 of the General Order.

The grievants were registered branch officials of the claimant union and were dismissed for attending the respondent's disciplinary hearings in their capacity as union representatives to protect members' right to be represented. The court found the dismissals arose from undertaking union activities, constituting victimisation for exercise of constitutional freedoms, and contravened statutory protections against anti-union discrimination.

Although reinstatement would ordinarily have been granted for union officials dismissed without valid reason or procedure, it was unavailable due to lapse of time. Terminal dues including pay in lieu of notice flow from Section 49(1). Maximum compensation under Section 49(4) was justified by the respondent's refusal to avail itself for statutory conciliation, the manner of dismissal and length of service. General damages of Kshs. 2 million each reflected punishment for exercise of constitutional freedoms. Claims for salary to retirement were refused.