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ELRCPartially AllowedCause No. 171 of 2016· [2019] KEELRC 2297 (KLR)

Kenya Plantation & Agricultural Workers Union v Finlays Flowers (K) Limited & another [2019] KEELRC 2297 (KLR)

Employment and Labour Relations Court of Kenya
1 February 2019
DMD. K. Njagi Marete
5,161 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court reinstated 286 dismissed Finlays workers, ruling that employers must prove employees received disciplinary notices or dismissals are unfair.

What this practically means

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Executive summary

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The Kenya Plantation & Agricultural Workers Union claimed on behalf of Nicholas Ouko Owino and 285 employees summarily dismissed by Finlays Flowers (K) Limited and James Finlays (K) Limited in December 2016, alleging the dismissals followed an unprotected strike during a deadlocked CBA review and breached sections 41 and 45 of the Employment Act, 2007. The respondents justified the dismissals as gross misconduct for absence from work during an unprotected strike, asserting show cause letters, disciplinary hearings and appeals were undertaken, and filed a counterclaim of Kshs.39,542,806.07 for police security costs and lost income. The court framed four issues. On the first, it held the dismissals unprocedural, wrongful, unfair and unlawful: there was no evidence of service of the show cause letters, hearing notices or dismissal letters, and no attendance registers, Labour Officer report or return to work formula proving the alleged absence, contrary to the mandatory process in section 41. On reinstatement, guided by sections 45(5), 49 and 50, the court found the grievants had not been replaced and, while disapproving industrial unrest, held the strike understandable given the respondents' failure to implement court-awarded 15%:15% salary increments, and ordered reinstatement. The counterclaim failed for want of proof linking losses to the grievants and because payments for private police use were irregular under the National Police Service Act. The claim was allowed; the grievants were reinstated without loss of emoluments, to resume work on 8th February 2019, with costs to the respondents.

Key legal issues

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01

Whether the summary dismissal of the 286 grievants was unprocedural, wrongful, unfair and unlawful

Holding

Yes - the dismissal was unprocedural, wrongful, unfair and unlawful for want of service of show cause letters, hearing notices and dismissal letters, contrary to section 41 of the Employment Act.

Reasoning

The court found no evidence of service of show cause letters dated 6th December 2016, invitations to disciplinary hearings on 7th and 8th December 2016, or the summary dismissal letters themselves. Section 41 requires an explanation, hearing and the presence of a fellow employee or shop floor union representative. No attendance register, Labour Officer report or return to work formula evidenced the alleged absence/desertion. The sequence of letters pointed to a predetermined outcome. The process, not the merits of the strike, was decisive.

p. 5
02

Whether the grievants should be reinstated

Holding

Yes - reinstatement without loss of benefits was ordered, no evidence showing the grievants had been replaced.

Reasoning

Guided by sections 45(5), 49 and 50 of the Employment Act, the court weighed the procedural breaches, the employees' conduct and the context of prolonged CBA disagreement and the respondents' failure to implement court-awarded salary increments. Although it disapproved industrial unrest, the court found the strike understandable given the respondents' inaction, and since there was no evidence the grievants had been replaced, reinstatement was appropriate.

p. 6
03

Whether the respondents were entitled to their counterclaim

Holding

No - the counterclaim failed for want of proof.

Reasoning

The respondents claimed Kshs.39,542,806.07 for police security and lost income from unpicked flowers and tea. Relying on the burden of proof under section 108 of the Evidence Act, the court found no evidence singling out any grievant as destroying property, threatening supervisors or stoning buses, and no police or intelligence report justifying the extra security. Payments for private police use were also found to breach the National Police Service Act procedure.

p. 7

Legal principles established

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  • Compliance with section 41 of the Employment Act (explanation, hearing and presence of a representative) is mandatory even in cases of summary dismissal.
  • An employer alleging gross misconduct must prove service of show cause letters, notices of disciplinary hearing and dismissal letters; absent proof of service the dismissal cannot stand.

Court orders

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  1. 1.That Nicholas Ouko Owino and the 285 grievants be and are hereby reinstated into employment without loss of emoluments, promotion and benefits
  2. 2.That Nicholas Ouko Owino and the 285 grievants resume work on 8th February, 2019 so as to afford the respondents a seven (7) day window to organize and actualize the massive reinstatement of the grievants
  3. 3.That the costs of the claim shall be borne by the respondents

Authorities

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Legislation

  • Employment Act, 2007section 45(1), (2), (4) and (5)
  • Employment Act, 2007section 44(3), (4)(a), (b), (c) and (e)
  • Employment Act, 2007section 41(1) and (2)
  • Employment Act, 2007section 43
  • Employment Act, 2007section 49
  • Employment Act, 2007section 50
  • Employment Act, 2007section 51
  • Employment Act, 2007section 12
  • Labour Relations Act, 2007sections 78 and 80
  • Evidence Actsection 108
  • National Police Service ActPart V and Fourth Schedule
  • Constitution of Kenya, 2010Article 244
  • Collective Bargaining Agreement (subsisting)Clause 25

Cases cited (8)

  • Abisalom Ajusa Magomere v Kenya Nut Company Limited
    (2014) eKLR
  • Shankar Saklani v DHL Forwarding (K) Limited
    (2012) eKLR
  • Churchil Ongalo v Kenya Kazi Security Services Limited
    Cause No.741 of 2014
  • Mohamed Yakub Athman & 29 Others v Kenya Ports Authority
    [2016] eKLR
  • Supreme Spring, A Division of Metindustrial Ltd vs Mewusa & Others
    Case Number J2067/10
  • Lamathe Hygiene Food v Wesley Patrick Simasi & 8 Others
    [2016] eKLR
  • Maseno University v Universities Academic Staff Union
    [2014] eKLR / [2015] eKLR
  • Kipkebe Limited v Peterson Ondieki Tai
    (2016) eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over employment and labour relations disputes (Employment Act, 2007; Labour Relations Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Kenya Plantation & Agricultural Workers Union v Finlays Flowers (K) Limited & another [2019] KEELRC 2297 (KLR)", Case Analysis (2019). Cause No. 171 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2297/eng@2019-02-01

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