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ELRCPartially AllowedNot stated in judgment· [2019] KEELRC 123 (KLR)

Kenya Chemical & Allied Workers Union v Kenplastics Limited [2019] KEELRC 123 (KLR)

Employment and Labour Relations Court
20 December 2019
1,683 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan plastics manufacturer was ordered to pay 13 workers over KES 2.1 million after unfairly dismissing them for joining a trade union.

What this practically means

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Executive summary

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The claimant union sued on behalf of thirteen grievants locked out of employment on 6/7 January 2015 after the employer learned they had joined the union in December 2014. The employer denied the employees were union members, denied any trade dispute, disputed the union's mandate and locus standi for lack of a recognition agreement, and alleged the grievants deserted their employment and their positions had been filled. At trial the claimant called two witnesses; the respondent tendered no evidence and only the claimant filed submissions. The court framed two issues: whether the grievants were unfairly dismissed or deserted employment, and their entitlement to reliefs. The desertion allegation failed for want of evidence. The court found the reason for dismissal was union membership and refusal to revoke it, which under Sections 45(2) and 46 of the Employment Act is not a fair reason, rendering the termination unfair and a breach of the Labour Relations Act and Articles 28, 36 and 41(2)(c) of the Constitution. Underpayment for the period 1.5.2013 to 31.12.2014 was assessed against the applicable Wage Order and arrears totalling Ksh. 2,121,720 were awarded to the thirteen grievants, less statutory deductions, plus costs and interest at court rates. Reinstatement was refused as barred by Section 12 of the Employment and Labour Relations Act after three years; compensation, leave and service pay were refused as unpleaded; no relief issued on the alleged contempt. Judgment was delivered in Nairobi on 20 December 2019 by Onesmus N. Makau, J.

Key legal issues

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01

Whether the grievants were unfairly dismissed or deserted employment

Holding

The grievants were dismissed for joining the claimant union and refusing to revoke their membership; the termination was unfair

Reasoning

The desertion allegation was raised only in the defence and the respondent tendered no evidence, so it was unproved. Both claimant witnesses testified that after the employer learned of their union membership in December 2014, they were required to sign revocation forms and, on refusal, were locked out and dismissed. Membership of a trade union is expressly excluded as a fair reason for dismissal under Sections 45(2) and 46 of the Employment Act, so the dismissal was unfair.

p. 2
02

Entitlement to reliefs

Holding

Underpayment claim granted as pleaded; reinstatement, compensation, leave and service pay refused

Reasoning

The underpayment claim, quantified against the applicable Wage Order for the period 1.5.2013 to 31.12.2014, was pleaded and proved, and arrears were awarded to each grievant. However, compensation, leave and service pay were raised only at hearing and in submissions, not in the statement of claim, and reinstatement was barred by Section 12 of the Employment and Labour Relations Act after three years had lapsed since separation.

p. 4

Legal principles established

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  • An employee's membership of, or refusal to withdraw from, a trade union does not constitute a fair reason for dismissal
  • Under Section 45(2) of the Employment Act, termination is unfair unless the employer proves a valid and fair reason and fair procedure
  • An allegation not proved by evidence, even where pleaded, fails
  • Parties are bound by their pleadings; unpleaded reliefs cannot be granted

Court orders

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  1. 1.Declaration that the respondent acted unfairly, unlawfully and in breach of the Labour Relations Act and Articles 28, 36 and 41(2)(c) of the Constitution
  2. 2.Finding that the termination of the grievants' employment was unfair under Section 45(2) of the Employment Act
  3. 3.Dismissal of the respondent's allegation of desertion for lack of evidence
  4. 4.Award of arrears of underpaid daily wages for 20 months (1.5.2013 to 31.12.2014) to each of the 13 grievants, totalling Ksh. 2,121,720
  5. 5.Award less statutory deductions but in addition to costs and interest at court rate from the date of filing the suit
  6. 6.Refusal of reinstatement, compensation for unfair termination, leave and service pay as unpleaded or barred
  7. 7.No relief on the alleged contempt of court
Jurisdiction invoked
Employment and Labour Relations Act (original employment and labour relations jurisdiction); suit filed following failed conciliation of a trade dispute

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 Chemical & Allied Workers Union v Kenplastics Limited [2019] KEELRC 123 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/123/eng@2019-12-20

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