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ELRCPartially AllowedCause No 39 of 2019· [2020] KEELRC 39 (KLR)

Kenya Union of Commercial, Food and Allied Workers v Superior Highlands Dairy and Feeds Limited [2020] KEELRC 39 (KLR)

Employment and Labour Relations Court
16 November 2020
NMNzioki wa Makau
2,636 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court found a worker who claimed unfair dismissal actually quit voluntarily, awarding her only unpaid sick pay, and struck out a union that lacked the right to represent her.

What this practically means

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Executive summary

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The Claimant union sued the Respondent on behalf of its former employee, the Grievant Milicent Wawira, a day watchman employed in 2016 at Kshs. 8,000/- who lost part of her elbow, was moved to lighter duties in the farm store, and alleged oral dismissal on 20th February 2018 without reasons or notice. The union sought reinstatement or, alternatively, notice pay, leave, public holidays, underpayment and compensation for unlawful termination. The Respondent denied terminating her, contending she was a casual worker who quit on her own volition, that she was paid above the Agricultural Wages Order, and that the union lacked mandate since it operates in the agricultural sector, relying on the Labour Relations Act and a cited union-jurisdiction case. The court heard the Grievant and three of the Respondent's witnesses. It held the Claimant union, lacking mandate over agricultural sector workers and having no recognition agreement, was a meddler, struck its name off and substituted the Grievant as Claimant. On the merits, the court found the Grievant did not prove dismissal: the alleged instruction to return gumboots was denied and her testimony did not accord with the truth; the supervisor and director indicated she left on her own. Claims for underpayment, overtime, public holidays and leave failed, the burden of proof not having been discharged and the wrong wages order (General rather than Agricultural) having been applied. The court awarded only Kshs. 18,000/- being two months' salary withheld during her illness, plus a certificate of service. Judgment delivered at Nairobi on 16th November 2020 by Nzioki wa Makau J.

Key legal issues

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01

Mandate of the Claimant union to represent the Grievant

Holding

The Claimant union lacked mandate as the Respondent operates in the agricultural sector; the union's name was struck off and the Grievant substituted as Claimant

Reasoning

The Grievant, the Respondent's pleadings and its witnesses all indicated the Respondent operates in the agricultural sector. The union's mandate covers commercial and food manufacturing workers, and it admitted having no recognition agreement. Relying on the sector classification, the court found the union was not the appropriate union and substituted the Grievant in its place.

p. 2
02

Whether the Grievant was unlawfully terminated or deserted employment

Holding

The Grievant failed to prove dismissal; the court found she left employment on her own volition

Reasoning

The person alleged to have asked her to return the gumboots denied doing so, and she could not prove she was fired by the accountant or manager. The supervisor testified she said she could no longer work, and the director indicated he would have met her had there been any reason for termination. Her testimony did not accord with the truth.

p. 3
03

Entitlement to salary for the period of illness/injury

Holding

The Grievant was entitled to Kshs. 18,000/- being two months' salary withheld during her illness

Reasoning

The Grievant was off work for about two months following the loss of her elbow and was not paid for that period, a fact confirmed by the Respondent's director. The court awarded the two months' salary of Kshs. 18,000/- as the only monetary relief established on the evidence.

p. 2

Legal principles established

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  • The burden of proving underpayment, overtime, public holidays and leave rests on the employee; the Employment Act contains no provision shifting that burden to the employer in respect of underpayment
  • A trade union without mandate over the sector in which the employer operates is a meddler and may have its name struck off and replaced by the grievant
  • Employees in the agricultural industry are governed by the Agricultural Wages Order, not the General Wages Order

Court orders

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  1. 1.The Claimant union's name is struck off and that of the Grievant Milicent Wawirah replaced as the Claimant in the suit
  2. 2.Payment to the Claimant of 2 months' salary withheld during her illness/injury - Kshs. 18,000/-
  3. 3.Issuance of a certificate of service

Authorities

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Legislation

  • Employment ActSections 43, 45, 74
  • Labour Relations ActSection 54(8)
  • Agriculture ActSection 2
  • Regulation of Wages (Agricultural Industry Wages Council Establishment) OrderNot specified
  • General Wages Order2017 Order

Cases cited (1)

  • Kenya Plantations & Agricultural Workers Union v Kenya Chemical and Allied Workers Union & 2 Others
    [2018] eKLR
Jurisdiction invoked
Referral of a trade dispute to the Employment and Labour Relations Court pursuant to a conciliator's certificate under the Labour Relations Act

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 Union of Commercial, Food and Allied Workers v Superior Highlands Dairy and Feeds Limited [2020] KEELRC 39 (KLR)", Case Analysis (2020). Cause No 39 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/39/eng@2020-11-16

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