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ELRCDismissedPetition (filed 19 July 2017, ELRC Mombasa)· [2018] KEELRC 1842 (KLR)

Dominic Mongare & 4 others v Kenya Ports Authority & another [2018] KEELRC 1842 (KLR)

Employment and Labour Relations Court
8 June 2018
JRJames Rika
2,101 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld KPA's Joint Industrial Council appeals process, ruling it was a negotiated workplace mechanism, not a court-like hearing requiring personal attendance.

What this practically means

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Executive summary

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Five former employees of Kenya Ports Authority (KPA), dismissed summarily in 2004, 2005 and 2007 for employment offences including theft of containers, alteration of overtime forms and causing accidents, petitioned the Employment and Labour Relations Court at Mombasa. They had gone through internal investigations, disciplinary processes, Committee of Inquiry hearings and appeals, some rejected in 2008. The Dock Workers' Union then secured a Joint Industrial Council (JIC) Appeals Committee, chaired by Abdirashid Salat, to review 62 appeals, including those of the Petitioners. The Committee, using inquiry records and consensus-building, upheld summary dismissal of 31 employees including the Petitioners, while recommending reinstatement for 15 others. The Petitioners, learning of the outcome only in 2016, alleged they were condemned unheard and discriminated against, and sought declarations of constitutional violation, quashing of the Committee's decision, reinstatement, compensation, and a fresh JIC Appeals Committee. KPA conceded the employment history but denied violation, and argued reinstatement could not issue more than three years after termination. The Union did not participate in the proceedings. Applying its earlier decision in Salome Lilian Etenyi v. KPA, the Court held the JIC Appeals Committee was a negotiated, extra-judicial industrial relations mechanism, not a quasi-judicial process, so legal standards of procedural and substantive justice under the Employment Act and the Constitution did not apply. The Committee acted within its terms of reference; the Petitioners' interests were represented by Union officials; and reinstatement was barred beyond three years. The Petition was dismissed with no order on the costs.

Key legal issues

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01

Whether the Petitioners were entitled to a personal hearing before the JIC Appeals Committee

Holding

No; the JIC process was a review of concluded disciplinary processes, not a legal or quasi-judicial process requiring personal hearings

Reasoning

The JIC Appeals Committee was a negotiated industrial relations mechanism operating under specific terms of reference. It relied on proceedings of Committees of Inquiry and disciplinary records, and could hear cases afresh only where records were insufficient. Petitioners had already been heard through internal disciplinary mechanisms, so procedural justice had been served before files closed.

p. 3
02

Whether the JIC Appeals Committee violated natural justice, the Constitution and the Employment Act 2007

Holding

No violation found; the Committee discharged its mandate professionally and in accordance with its terms of reference

Reasoning

The Committee comprised top representatives of both Respondents, including the Union's General Secretary, and applied agreed tools including the Human Resource Manual 2008, Labour Laws and the Disciplinary Handbook 2008. Its interests were adequately represented by Union officials. Section 41 of the Employment Act requirements did not apply to this extra-judicial, negotiated process.

p. 3
03

Whether reinstatement could be ordered

Holding

Reinstatement is unavailable more than three years after termination

Reasoning

The 1st Respondent argued the Court lacks power to order reinstatement beyond three years from termination. The Court had noted in the Etenyi case that it ordered implementation of a reinstatement recommendation, but here the Committee recommended upholding dismissal, so there was no basis for reinstatement.

p. 3

Legal principles established

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  • Courts should not apply legal standards to non-legal, negotiated industrial relations dispute-resolution mechanisms; the Court will only intervene where the mechanism fails to act in accordance with its terms of reference.
  • Recommendations of a Joint Industrial Council Appeals Committee ought to be implemented by Management unless strong reason is shown not to.

Court orders

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  1. 1.The Petition is dismissed
  2. 2.No order on the costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles cited by Petitioners (not specified in judgment)
  • Employment Act, 2007Section 41

Cases cited (1)

  • Salome Lilian Etenyi v. Kenya Ports Authority
    [2017] e-KLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (constitutional petition under the Constitution and the Employment Act 2007; specific provision not stated in the judgment)

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, "Dominic Mongare & 4 others v Kenya Ports Authority & another [2018] KEELRC 1842 (KLR)", Case Analysis (2018). Petition (filed 19 July 2017, ELRC Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1842/eng@2018-06-08

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