Kenya Building, Construction, Timber and Furniture Industries Employees Union v Timsales Ltd (Cause 1282 of 2018) [2019] KEELRC 1339 (KLR)
The bottom line
#Kenyan employees who strike without following the Labour Relations Act's notice rules lose court protection and can face disciplinary action.
What this practically means
#Executive summary
#Key legal issues
#Whether the employees were locked out or engaged in an unprotected strike
The employees participated in an unprotected, illegal sit-in strike; there was no lock-out.
Applying the definitions in Section 2 of the Labour Relations Act and the protective conditions in Sections 76 and 79, the court found the notice to strike dated 23rd July 2018 with the strike commencing 25th July 2018 was shorter than the statutory notice period. The Labour Officer's report confirmed it was a sit-in, not a lock-out, and that workers assembled at the petrol station within the company premises and became rowdy.
Whether the employer could require striking employees to undergo disciplinary processes before resuming work
Yes. Under Section 80(1) an employee who takes part in an unprotected strike breaches the contract and is liable to disciplinary action; the court will not interfere with this managerial prerogative.
Relying on Kenya Revenue Authority v Menginya Salim and Alfred Nyungu Kimungui v Bomas of Kenya, the court held that disciplinary action is exercised under the contract of employment and that courts should not take over managerial prerogatives at the workplace. The conciliator also recommended employees be allowed back after disciplinary processes per the CBA and Employment Act.
Whether the Respondent's directors were in contempt of the orders of 3rd August 2018
The contempt application was overtaken by events; the parties had been directed to negotiate and to conciliation before the County Labour Officer.
On 16th August 2018 the court directed negotiations and referral to the County Labour Officer, Nakuru, for conciliation and a factual report. In light of that process the contempt issue lapsed, and the negotiations having failed, the court determined the substantive dispute on the merits.
Legal principles established
#- A strike that does not comply with the notice and conciliation requirements of Sections 76, 77, 78, 79 and 80 of the Labour Relations Act is unprotected and illegal, exposing participants to disciplinary action.
- Courts should not interfere with the employer's managerial prerogative, including the right to subject striking employees to disciplinary processes.
Court orders
#- 1.The application dated 3rd August 2018 is dismissed.
- 2.The application dated 12th September 2018 (citing the Respondent's directors for contempt) is dismissed.
- 3.The Respondent is at liberty to proceed with the disciplinary process in accordance with the CBA and the Employment Act in respect of the workers who have not yet presented themselves for the same.
- 4.Both the claim and application are dismissed.
- Jurisdiction invoked
- Jurisdiction as the Industrial Court under the Labour Relations Act, including Section 80(3) (any issue concerning whether a strike or lock-out complies with the Act may be referred to the Industrial Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Building, Construction, Timber and Furniture Industries Employees Union v Timsales Ltd (Cause 1282 of 2018) [2019] KEELRC 1339 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1339/eng@2019-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.