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ELRCDismissedCause (Issue in Dispute: Wrongful dismissal of 36 employees of the Nairobi Water & Sewerage Co. Ltd)· [2019] KEELRC 2130 (KLR)

Kenya County Government Workers Union v Nairobi City Water & Sewerage Company Limited [2019] KEELRC 2130 (KLR)

Employment and Labour Relations Court
1 March 2019
RSRadido Stephen
1,104 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Nairobi Water legally fired 36 staff for using forged certificates, and the court dismissed the union's claim entirely.

What this practically means

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Executive summary

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The Kenya County Government Workers Union sued Nairobi Water & Sewerage Co. Ltd on 20 August 2013 alleging wrongful dismissal of 36 employees terminated variously between 2004 and 2009. The Respondent contended the Cause was time barred and that the terminations were lawful; a limitation ruling delivered on 10 February 2017 evidently went against the Respondent, which lodged an appeal whose status was never disclosed. At the full hearing the court condensed the dispute into two issues: whether the terminations were unlawful, and appropriate remedies. The court held that the Employment Act, 2007 - including the section 41 right to a hearing - did not govern the 2006 and 2007 terminations, and no contractual or other statutory hearing entitlement was proved; the appeals of the Grievants were in any event heard by the Respondent with Union participation in 2011 and 2012. On the substantive reason, the Respondent produced verification responses from the Ministry of Labour, the Kenya National Examinations Council and KASNEB confirming that certificates presented by the Grievants were fictitious, and several Grievants admitted the forgeries in writing. The court held that using forged certificates to secure employment or promotion was, and remains, a lawful ground for termination, and that the employer's failure to involve the Police was immaterial. One Grievant, Joshua Laichena, had withdrawn from the proceedings. Finding the terminations lawful, the court dismissed the Cause on 1 March 2019 with no order as to costs.

Key legal issues

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01

Whether the pre-2007 terminations were unlawful for want of a hearing

Holding

No - the statutory right to a hearing under section 41 of the Employment Act, 2007 is not retrospective, and no contractual or other statutory right to a hearing was proved

Reasoning

The Employment Act, 2007 does not apply to terminations before its commencement, save for the 2009 dismissal where no evidence was tendered. No collective bargaining agreement or other contractual provision requiring a hearing was produced or proved. The appeals lodged by the Grievants were in any event heard by the Respondent with Union participation in 2011 and 2012.

02

Whether the Respondent had lawful cause to terminate

Holding

Yes - the Grievants presented forged certificates to secure employment and/or promotion

Reasoning

Verification responses from the Ministry of Labour, KNEC and KASNEB confirmed that certificates presented by the Grievants were fictitious or non-genuine. Some Grievants admitted the forgeries in writing. Dishonesty of this kind was, and remains, a lawful ground for termination, and non-involvement of the Police does not affect its legality.

p. 2
03

Appropriate remedies

Holding

None - the Cause lacked merit and was dismissed

Reasoning

Having found the terminations lawful, no remedies were due. The claim was dismissed with no order as to costs.

p. 3

Legal principles established

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  • Under the pre-Employment Act 2007 regime, an employer could lawfully terminate employment for no reason, a bad reason or a good reason provided notice-period damages were paid, and validity or fairness of reasons was not a consideration
  • Use of non-genuine or forged certificates to secure employment or promotion is a lawful ground for termination
  • It is immaterial that the employer did not report the forgery to the Police in order to justify termination

Court orders

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  1. 1.The Cause is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007sections 43 and 45
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over a trade dispute/memorandum of claim for wrongful dismissal (specific provision not cited in judgment)

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 County Government Workers Union v Nairobi City Water & Sewerage Company Limited [2019] KEELRC 2130 (KLR)", Case Analysis (2019). Cause (Issue in Dispute: Wrongful dismissal of 36 employees of the Nairobi Water & Sewerage Co. Ltd). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2130/eng@2019-03-01

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