Kenya Hotels and Allied Workers Union v Simary Safari Hotel Co. Ltd & 2 others [2019] KEELRC 620 (KLR)
The bottom line
#Kenya's Employment Court awarded six workers 8 months' pay, severance and arrears after their employer gave no valid reason for terminating them.
What this practically means
#Executive summary
#Key legal issues
#Standing of the union to sue for its members
The union had standing to sue on behalf of the grievants on their individual contracts of service
The court found as a matter of evidence that the grievants were members of the claimant trade union at all material times. Membership sufficed to clothe the union with standing to prosecute the claim arising from the individual contracts of service of the grievants, who were employed by the respondents on diverse dates.
Identity of the employer
The employer was the 2nd respondent, Simary Investments Co. Ltd, as shown on the payslips
The exhibited payslips showed the grievants were paid by Simary Investments Co. Ltd, which the court identified as the 2nd respondent. On that documentary evidence the court attributed the employment relationship, and liability for the unfair termination and terminal dues, to the 2nd respondent alone.
Fairness of termination
The termination was unfair for want of a valid reason under section 43 of the Employment Act, 2007
The 2nd respondent did not file a defence or attend the hearing. In the absence of contrary evidence, the court accepted the claimant's witness's testimony that the grievants were terminated on 06.11.2015 without a valid reason, notice or terminal pay, and held the terminations unfair under section 43 of the Employment Act, 2007.
Remedies and quantum
Each grievant awarded 8 months' gross salary as compensation; severance pay, annual leave pay and salary arrears awarded as prayed; public holiday pay declined for want of evidence
In assessing compensation under section 49, the court considered each grievant's length of service, their desire to remain in employment, and the aggravating factor that salaries due had been withheld, awarding 8 months' gross salary as at October 2015. Severance pay under section 40, salary arrears and leave pay were awarded as prayed; public holiday pay failed for want of evidence.
Legal principles established
#- A trade union with members under individual contracts of service has standing to sue on their behalf
- An employer must establish a valid reason for termination under section 43 of the Employment Act, failing which the termination is unfair
- Where no adverse reason for termination is established, an employee whose services were ended is entitled to severance pay under section 40 of the Employment Act
Court orders
#- 1.Declaration that the termination of the grievants' employment was unfair
- 2.The 2nd respondent to pay the grievants 8 months' salaries as compensation under section 49 of the Act; severance pay as prayed for; pay in lieu of annual leave as prayed for; and salary arrears or withheld pay as prayed for
- 3.The claimant to compute the dues and file and serve the same within 7 days for recording the quantum in Court on an appropriate date
- 4.The 2nd respondent to pay the claimant's costs of the suit
- 5.The 1st and 2nd respondents, having not participated, are each not entitled to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 40, 43 and 49 invoked) over a trade union claim for members' unfair termination and terminal dues
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Hotels and Allied Workers Union v Simary Safari Hotel Co. Ltd & 2 others [2019] KEELRC 620 (KLR)", Case Analysis (2019). Cause No 125 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/620/eng@2019-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.