Kenya Petroleum Oil Workers Union v CYKA Manpower Services Ltd & another [2018] KEELRC 1668 (KLR)
The bottom line
#Kenya's Employment Court ruled that firing 11 workers for joining a union was unfair, awarding them Kshs.2.5 million plus union recognition.
What this practically means
#Executive summary
#Key legal issues
#Validity of the reason for termination
The respondent failed to prove the alleged client-driven redundancy; the court found on a balance of probability that the grievants were terminated because of their union affiliation, an unfair reason under section 46.
The respondent alleged, without written evidence, that the client advised the job cuts due to the approaching 2017 general election. CW1 testified that the 11 grievants were laid off while union members who resigned from the union were retained, and that 10 new employees were later hired. The absence of documentary proof of the client's request left the court to infer victimisation for union membership.
Procedural fairness in redundancy
The mandatory procedure in section 40 of the Employment Act was not complied with; no one-month notice was served on the grievants or the labour officer, and the default was not cured by payment in lieu.
RW1 admitted no notice preceded the redundancy, contending payment of one month salary in lieu cured the default. The court held section 40 prescribes mandatory sequential steps: prior written notice to the employee or union and the labour officer, fair selection, then payment of salary in lieu, accrued benefits and severance pay. Non-compliance rendered the termination procedurally unfair.
Locus standi of the union
The claimant had recruited 22 of 23 unionisable employees before filing suit and had capacity to sue for the grievants; the objection, raised late and not pressed in submissions, failed.
The claimant produced check-off forms for 22 of the respondent's 23 employees. The court held that the suit and ELRCC 278 of 2017 were intertwined and that on the numbers as at filing, the claimant represented more than a simple majority. It also noted the respondent waited until the close of the claimant's case to raise capacity and never raised it in closing submissions.
Recognition and check-off under the Labour Relations Act
The claimant was entitled to recognition under section 54 and the respondent was compelled to recognise the union and deduct and remit dues for surviving members, based on the position at filing suit.
The court found the claimant represented more than a simple majority as at 18.4.2017 when suit No. 278 of 2017 was filed. Even though membership later fell below a simple majority after terminations and resignations, recognition was assessed on the status quo at the time of filing. Deduction of union dues was ordered for surviving union members still employed.
Legal principles established
#- Termination of employment is unfair where the employer fails to prove both a valid and fair reason and a fair procedure under section 45(2) of the Employment Act
- Termination on account of an employee's union affiliation is an unfair reason under section 46 of the Employment Act
- The redundancy procedure in section 40 of the Employment Act is mandatory: one month written notice to the employee or union and the labour officer, fair selection, and payment of dues including severance pay
- A union recruiting a simple majority of unionisable employees is entitled to recognition under section 54 of the Labour Relations Act, assessed as at the date of filing suit
- A Certificate of Service is a statutory right under section 51 of the Employment Act
Court orders
#- 1.Declaration that the termination of the 11 grievants was unfair and wrongful
- 2.Compensation of 12 months' salary for each grievant under section 49 of the Employment Act, totalling Kshs.2,505,420
- 3.Judgment for the claimant on behalf of the grievants in the aggregate sum of Kshs.2,505,420 plus costs and interest from the date of judgment, payable less statutory deductions
- 4.Order compelling the respondent to recognise the claimant as the union to represent her employees for purposes of collective bargaining under section 54 of the Labour Relations Act
- 5.Order compelling the respondent to commence deducting union dues from the salaries of the surviving union members still in her employment and remit the same to the claimant
- 6.Each grievant to be issued with a Certificate of Service under section 51 of the Employment Act
- 7.Dismissal of the claims for one month salary in lieu of notice, severance, overtime, accrued leave and general damages for discrimination
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and the Employment Act (specific enabling provision not cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Petroleum Oil Workers Union v CYKA Manpower Services Ltd & another [2018] KEELRC 1668 (KLR)", Case Analysis (2018). ELRCC Cause No. 142 of 2017 (consolidated with ELRCC Cause No. 278 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1668/eng@2018-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.