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ELRCPartially AllowedNot stated in the judgment text provided· [2018] KEELRC 1877 (KLR)

Kenya County Government Workers Union v Githuguri Water & Sanitation Company Limited [2018] KEELRC 1877 (KLR)

Employment and Labour Relations Court
4 June 2018
NMNzioki wa Makau
996 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused to reinstate two dismissed union officials but awarded each six months' salary because trust between employer and employees had completely broken down.

What this practically means

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Executive summary

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The Claimant union sued on behalf of two Grievants, the branch secretary and youth representative, both employees of the Respondent company. The Grievants were dismissed by the Director and Chairman on allegations of gross misconduct which they said were trumped up because of their trade union activities. The Claimant alleged that no disciplinary committee was formed as required, that the Grievants gave proper responses to the allegations, and that the Respondent refused to implement a conciliator's report recommending reinstatement, as well as rejecting a recommendation of the Kiambu County Assembly's Sectoral Committee. The Claimant sought reinstatement, a finding of discrimination, and payment of salaries for the period out of employment. The Respondent defended the dismissal as procedurally fair, maintained the Grievants failed to attend the appeal hearing, and argued that the County Assembly's recommendations could not bind a limited liability company. Both Grievants testified, as did the Respondent's HR manager and former Managing Director. The court found there may have been cause to dismiss the Grievants, but that the Respondent's conduct after conciliation left much to be desired. Though the reinstatement period had not lapsed, the bad blood between the parties made recompense the better course. The court awarded each Grievant 6 months' salary under Section 49 of the Employment Act, reduced the summary dismissal to a normal termination to enable access to benefits, ordered certificates of service, and awarded costs assessed at Kshs. 25,000/-. The remaining claims, including reinstatement and discrimination, failed.

Key legal issues

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01

Procedural fairness in dismissal of trade union officials

Holding

Although there may have been cause to dismiss the Grievants, the Respondent's conduct after conciliation was wanting; summary dismissal was converted to normal termination and compensation awarded.

Reasoning

The Grievants were dismissed for alleged gross misconduct, and the court accepted there may have been cause. However, the conciliator recommended reinstatement and the Respondent refused. The court found the Respondent's post-conciliation conduct left much to be desired, and balanced this by awarding 6 months' salary for each Grievant under Section 49 of the Employment Act rather than reinstatement.

p. 2
02

Appropriate remedy: reinstatement versus compensation

Holding

Compensation of 6 months' salary for each Grievant awarded instead of reinstatement due to the breakdown in the relationship.

Reasoning

The court acknowledged the time since dismissal had not exceeded the reinstatement threshold, but the mutual mistrust between the parties made reinstatement impractical. It instead exercised its discretion under Section 49 of the Employment Act to award compensation, allowed conversion of the summary dismissal into normal termination for purposes of benefits, and ordered certificates of service.

p. 2
03

Effect of Grievants' non-attendance at appeal hearing

Holding

The Grievants conceded they did not attend the appeal as the matter was pending before the County Assembly.

Reasoning

Both the Grievants and the Respondent's witnesses confirmed the Grievants declined to attend the appeal hearing because the matter was before the County Assembly. The Respondent maintained it was not answerable to the County Assembly. This bore on the assessment of the parties' conduct and the court's decision that reinstatement was not the best course.

p. 2

Legal principles established

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  • Where the employment relationship has broken down due to bad blood between employer and employee, compensation under Section 49 of the Employment Act is preferable to reinstatement even where the reinstatement period has not lapsed.
  • A court may convert a summary dismissal to a normal termination to enable the employee access their benefits.
  • A recommendation of a County Assembly cannot be enforced against a limited liability company in matters of hiring and firing its employees.

Court orders

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  1. 1.Recompense of the Grievants in terms of Section 49 of the Employment Act by payment of salary for 6 months for each Grievant
  2. 2.The Grievants' termination reduced from summary dismissal to a normal termination to enable them access their benefits
  3. 3.Issuance of certificates of service to the Grievants
  4. 4.Costs of the suit to the Claimant, assessed at Kshs. 25,000/-
  5. 5.The rest of the claims fail

Authorities

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Legislation

  • Constitution of KenyaNot specified
  • Employment ActSection 49
  • ILO Convention No. 135Right to representation and enjoyment of union rights
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over employment and labour relations disputes; Constitution of Kenya and Employment Act invoked by the parties

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 County Government Workers Union v Githuguri Water & Sanitation Company Limited [2018] KEELRC 1877 (KLR)", Case Analysis (2018). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1877/eng@2018-06-04

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