Kiganane v Mega Pack (Kenya) Limited (Cause 383 of 2017) [2019] KEELRC 2626 (KLR)
The bottom line
#A Kenyan court ruled that joining an unprotected strike is gross misconduct, so the employer lawfully dismissed the worker without compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether summary dismissal for participation in an unprotected strike was fair and justified
The dismissal was justified; the strike was not protected under section 76 of the Labour Relations Act and the employer issued notices to resume work which the claimant ignored
The court held that although the right to assemble is constitutional, work stoppage is regulated under section 76 of the Labour Relations Act, 2007, which requires an unresolved dispute after conciliation and seven days written notice. The claimant admitted striking without such protection, ignored notices to resume work, and accepted terminal dues. The respondent discharged its duty under sections 44, 41(2) and 47 of the Employment Act, so the dismissal was justified.
Whether the employer must prove valid reasons and follow fair procedure before termination
Sections 43, 45(2) and 47 of the Employment Act oblige the employer to justify and prove valid and fair reasons and to hear the employee before summary dismissal
The court restated the statutory framework requiring the employer to justify the grounds of termination and to hear and consider representations before summary dismissal for gross misconduct, citing Muthaiga Country Club v Kudheiha Workers and Caliph O Ogega v NSSF. On the facts, the respondent met this burden because the misconduct (unprotected strike) was established and the claimant was given repeated notices and paid in the presence of a trade union representative.
Whether the claimant was entitled to overtime, service gratuity, leave pay and outstanding dues
No outstanding dues; overtime claims defeated by 8-hour shift system and payments already made; no contractual basis for gratuity; dues paid under a signed discharge voucher
The claimant worked three 8-hour shifts daily and his pay statements already included varying overtime, so a further overtime claim would amount to unjust enrichment. His contract contained no service gratuity clause and NSSF/NHIF were deducted. He signed a discharge voucher on 25th November, 2014 acknowledging Ksh.13,004.00 covering wages, house allowance, leave balance and deductions, and this payment was not controverted.
Legal principles established
#- An employee cannot assert the right to strike outside the law; participation in an unprotected strike constitutes gross misconduct justifying summary dismissal
Court orders
#- 1.The claims made are found without merit and are dismissed with costs to the respondent
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims under the Employment Act, 2007 (court not stated to have invoked a specific constitutional article)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiganane v Mega Pack (Kenya) Limited (Cause 383 of 2017) [2019] KEELRC 2626 (KLR)", Case Analysis (2019). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2626/eng@2019-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.