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ELRCDismissedCause No. 248 of 2017· [2019] KEELRC 1770 (KLR)

Joash Alubale Jacob v Mega Pack Limited [2019] KEELRC 1770 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
29 April 2019
MMM. Mbaru
2,155 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court upheld the summary dismissal of an employee who joined a strike without the seven days' notice the law requires before industrial action.

What this practically means

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Executive summary

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The claimant, employed by the respondent from January 2011, was summarily dismissed on 21st November 2014 on grounds of stoppage of work and participation in an illegal strike. He sued for unfair termination, claiming underpayments of Ksh.101,229.57, leave allowance, pay for work during public holidays, service gratuity, notice pay, compensation for unfair termination, general damages and costs, asserting the industrial action was a good-faith agitation for the minimum wage and better working conditions. The defence was that the claimant held fixed-term contracts as a general worker on a lawful wage, took part in an unprotected two-day strike without notice, ignored notices to resume work, and was paid all terminal dues. The court framed two issues: whether the summary dismissal was lawful, justified or unfair, and whether the remedies sought were due. Applying section 46 of the Employment Act, 2007 read with Part X, sections 76, 78 and 80 of the Labour Relations Act, 2007, the court held the strike was unprotected for want of the mandatory seven days' notice and conciliation. The claimant's own evidence, in which he spoke in the plural of agitating for better terms and staying away, showed his participation and refusal to resume duty. The summary dismissal was therefore justified. The employer's payment records showed no underpayment, and leave, overtime and holiday pay had been paid. Gratuity was not due where section 35(6) had been complied with, notice pay did not arise, and general damages were unparticularised. All claims were dismissed with costs to the respondent.

Key legal issues

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01

Whether the summary dismissal for participating in an unprotected strike was lawful and justified

Holding

The summary dismissal was justified. The claimant took part in a stoppage of work without the notice and conciliation required by sections 76 and 80 of the Labour Relations Act, and refused to resume duty despite notices and warnings.

Reasoning

The court read section 46 of the Employment Act with Part X of the Labour Relations Act. A protected strike requires a trade dispute over terms and conditions, exhausted conciliation, and seven days' written notice. None existed here. The claimant's own evidence, using 'we' and 'us', showed he agitated for better terms, stayed away from work, and collected terminal dues voluntarily. His conduct invoked section 80 liability for an unprotected strike, so the sanction of summary dismissal was justified.

p. 3
02

Whether the claims for underpayment, leave pay, holiday pay, gratuity, notice pay and general damages were due

Holding

All monetary claims were declined. The employer's payment records showed no underpayment, leave and overtime/holiday pay were paid, gratuity was not due under section 35(6), and general damages lacked proof.

Reasoning

The claimant was employed as a general worker, not a machine operator, so the wage paid was lawful for his position. Payment statements showed December leave pay, overtime and double holiday payments. Records kept by the employer could not be faulted. Having received terminal dues and signed acceptance, the claimant could not resile. General damages required particularised and proved loss, which was absent.

p. 3

Legal principles established

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  • A strike is protected only if it complies with section 76 of the Labour Relations Act, including seven days' written notice and prior conciliation; an unprotected strike exposes the employee to disciplinary action and loss of payment.

Court orders

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  1. 1.The claims made are found without merit and are dismissed
  2. 2.Costs to the respondent

Authorities

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Legislation

  • Employment Actsection 46
  • Employment Actsection 35(6)
  • Labour Relations ActPart X (10)
  • Labour Relations Actsection 76
  • Labour Relations Actsection 78
  • Labour Relations Actsection 80(1)
  • Constitution of Kenya, 2010right to assemble (fundamental rights)

Cases cited (1)

  • Inter-Public Universities' Councils Consultative Forum of Federation of Kenya Employers versus Universities' Academic Staff Union & 5 others
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over employment disputes

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joash Alubale Jacob v Mega Pack Limited [2019] KEELRC 1770 (KLR)", Case Analysis (2019). Cause No. 248 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1770/eng@2019-04-29

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