Kenya Plantation & Agricultural Workers Union v James Finlays (K) Limited [2018] KEELRC 1600 (KLR)
The bottom line
#A Kenyan court ruled that James Finlays unfairly sacked workers for questioning changed pay and tasks, awarding them 12 months' salary compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the employment of the 7 grievants was wrongful, unfair and unlawful
Yes. The dismissals violated sections 41(1) and (2), 43, 44 and 45 of the Employment Act, 2007, being devoid of both substantive and procedural requirements for lawful termination.
The grievants questioned changes to their daily task and rate of pay imposed by the respondent without consultation, contrary to section 10(5) of the Employment Act. The show cause letters gave inadequate time to respond (e.g. 1000 to 1500 hours), and the disciplinary process failed to meet statutory requirements. Dismissal for agitating for information on terms of service was for the wrong reasons and violated sections 41(1) and (2), 43, 44 and 45 of the Employment Act, 2007.
Whether the respondent's plea of issue estoppel, based on prior decisions between the same parties, barred the claim
No. No two matters are alike in fact and substance; the defence was an abuse of terminology and should have been raised as a preliminary objection, not in submissions.
The court held that the cited cases bearing similarities with this cause did not debar it from hearing and determining the matter on its merits. An estoppel defence raised for the first time in submissions, rather than as a preliminary objection early in the proceedings, was described as suspicious, devoid of merit, and to be thrown out in readiness for the potent issues in dispute.
Whether the claimant is entitled to the relief sought despite absence of pleaded monthly emoluments
Yes. The court departed from prior practice of leaving relief unquantified where emoluments were not pleaded, invoking section 10 of the Employment Act and Article 22(3)(b) of the Constitution.
The employer is burdened by section 10(2)(h) and (i) of the Employment Act to provide particulars of remuneration. Penalising a litigant for data not in its possession would be unfair. Article 22(3)(b) requires minimal formality in proceedings enforcing the Bill of Rights, a transformative shift the court held applicable to employment and labour relations, allowing relief to be computed by the Commissioner of Labour.
Who bears the costs of the claim
The respondent, having lost the claim, was ordered to bear the costs.
The claim succeeded on the question of unlawful termination; the claimant was therefore held entitled to the relief sought, and costs followed the event against the respondent.
Legal principles established
#- An employer cannot unilaterally alter an employee's contract of employment; changes to terms such as daily task and rate of pay must be made in consultation with the employee, and dismissing employees for seeking information on such changes constitutes unfair, wrongful and unlawful termination
- The employer bears the statutory burden under section 10 of the Employment Act to provide particulars of the contract of service including remuneration, and a successful litigant should not be penalised for failing to plead monthly emoluments that may not be in the litigant's possession
- A defence of issue estoppel raised only in submissions, without being raised as a preliminary objection early in the proceedings, is an abuse of terminology and cannot debar the court from hearing the matter on its merits
Court orders
#- 1.A declaration that the termination of the employment of the grievants by the respondent was unfair, unlawful, untenable, unconscionable and illegal
- 2.One (1) months salary in lieu of notice
- 3.12 months compensation for unlawful termination of employment
- 4.The Commissioner of Labour, with the involvement of the parties, to compute the relief and file a report to the court within 120 days
- 5.Mention on 31st October, 2018 for a report on computation
- 6.The costs of the claim to be borne by the respondent
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Collective Bargaining Agreement between the parties
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Plantation & Agricultural Workers Union v James Finlays (K) Limited [2018] KEELRC 1600 (KLR)", Case Analysis (2018). Cause No. 3 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1600/eng@2018-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.