Kenya Chemical & Allied Workers Union v Kenplastics Limited [2019] KEELRC 123 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the grievants were unfairly dismissed or deserted employment
The grievants were dismissed for joining the claimant union and refusing to revoke their membership; the termination was unfair
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.
Entitlement to reliefs
Underpayment claim granted as pleaded; reinstatement, compensation, leave and service pay refused
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.
Legal principles established
#- 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
#- 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.Finding that the termination of the grievants' employment was unfair under Section 45(2) of the Employment Act
- 3.Dismissal of the respondent's allegation of desertion for lack of evidence
- 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.Award less statutory deductions but in addition to costs and interest at court rate from the date of filing the suit
- 6.Refusal of reinstatement, compensation for unfair termination, leave and service pay as unpleaded or barred
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.