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ELRCPartially AllowedCause No 298 of 2011· [2020] KEELRC 712 (KLR)

Kenya Union of Commercial Food and Allied Workers v Tanathi Water Services Board; Nol Turesh Pipeline Bulk Water Supply Company Limited (Interested Party) [2020] KEELRC 712 (KLR)

Employment and Labour Relations Court
17 July 2020
MOMaureen Onyango
3,157 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a water company's dismissal of a worker without a proper hearing was unfair and awarded his estate 10 months' salary.

What this practically means

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Executive summary

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The Claimant union, KUCFAW, sued Tanathi Water Services Board over the summary dismissal of its grievant, Simon Muia (now deceased, substituted by his widow as administrator), who was first employed by the National Water Conservation and Pipeline Corporation in 1992 and seconded to the Interested Party, Nol-Turesh Pipeline Bulk Water Supply Company Ltd, as a plumber. He was summarily dismissed on 21st July 2009 for allegedly defrauding a client Kshs. 7,500. The union pleaded a violation of the disciplinary procedure and sought reinstatement, loan interest and costs. The Respondent justified the dismissal under Section 44(1) of the Employment Act, citing prior warnings, and challenged the union's locus on the ground that it had no recognition agreement with the Respondent. The court framed three issues: locus standi, fairness of the dismissal, and remedies. It found the union had locus through its recognition agreement with the principal employer and the Respondent's supervisory role. On the evidence, RW1 conceded that the dismissal letter issued before the show-cause period expired, both letters were received on 3rd August 2009, and no disciplinary hearing was held. The court held that due process was not followed and the dismissal was procedurally unfair and unlawful. Reinstatement was impossible because the grievant died; the court substituted compensation, reducing the dismissal to a normal termination, ordering payment of normal terminal dues and compensation equivalent to 10 months' salary. Unpleaded claims for compensation on harmonized wages and unsubstantiated loan interest were disallowed. The judgment, delivered by Maureen Onyango, J on 17th July 2020, made no express costs order.

Key legal issues

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01

Locus standi of the Claimant union

Holding

The union had locus to represent the grievant; its recognition agreement with the grievant's principal employer, National Water Conservation and Pipeline Corporation, created a nexus with the Respondent, who had a supervisory role over the grievant.

Reasoning

RW1 confirmed that the Water Act 2002 reforms allowed water sector employees to be seconded to water boards. The union's recognition agreement with the grievant's first employer sufficed to bind the Respondent, who exercised a supervisory role over the grievant. The court is also mandated under Section 12(1)(b) of the Labour Relations Court Act to hear the suit between the parties.

p. 3
02

Whether the grievant was unfairly and unlawfully dismissed

Holding

The dismissal was procedurally unfair and unlawful. The Respondent breached Section 41 of the Employment Act: the dismissal letter issued on 21st July 2009 before the 7-day show-cause period expired on 22nd July 2009, no disciplinary hearing was conducted, and the grievant received both letters on 3rd August 2009.

Reasoning

RW1 conceded under cross-examination that the grievant was never taken through a disciplinary hearing by Tanathi and was not aware of any hearing by Nol-Turesh. The Respondent adduced no evidence of the meeting of 11th July 2009 referred to in the dismissal letter. Failing proof of compliance with Sections 41 and 45 of the Employment Act, its assertion that the grievant was heard fails for lack of evidence, and due process was not adhered to.

p. 4
03

Whether the Claimant union is entitled to the remedies sought

Holding

Reinstatement could not issue because the grievant is deceased; the court instead substituted compensation of 10 months' salary plus normal terminal dues. Unpleaded claims for compensation on harmonized wages and loan interest were disallowed.

Reasoning

The remedial powers are anchored in Section 12(3) of the Employment and Labour Relations Court Act. The court agreed with the Respondent that parties are bound by pleadings, so unpleaded compensation claims in submissions were disregarded. Considering the grievant's 17 years of service and denial of a hearing, the dismissal was reduced to normal termination with terminal dues and 10 months' salary as compensation.

p. 4

Legal principles established

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  • An employer must afford an employee a hearing satisfying the minimum standards of fairness under Sections 41 and 45 of the Employment Act before summary dismissal; a dismissal without such hearing is procedurally unfair
  • A party asserting facts bearing on a legal right must prove them; the burden lies on the person who would fail if no evidence were given
  • Parties are bound by their pleadings and evidence at variance with pleadings must be rejected
  • A recognition agreement between a union and an employee's principal employer suffices to create a nexus with a supervisory seconded employer for locus standi purposes

Court orders

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  1. 1.The dismissal is reduced to a normal termination of employment
  2. 2.The Respondent directed to pay the grievant normal terminal dues
  3. 3.The Respondent directed to pay compensation equivalent to 10 months' salary

Authorities

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Legislation

  • Employment ActSections 41, 41(2), 44(1), 44(4), 45(2), 47(5)
  • Labour Relations ActSections 54(1), 59, 69
  • Labour Institutions Act 2007Section 63
  • Employment and Labour Relations Court ActSections 12, 12(1)(b), 12(3)
  • Water Act 2002Sections 53 and 55
  • Regulation of Wages and Conditions of Employment Act Cap 229Repealed and saved within Section 63 of Labour Institutions Act 2007
  • Evidence ActSections 107, 108, 109
  • Constitution of KenyaArticles 159(2)(d), 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (6)

  • Antony Mkala Chitavi v Malindi Water and Sewerage Co. Ltd
    [2013] eKLR
  • Paul Mumo Kitavi vs. ACME Containers Ltd
    (2019) eKLR
  • Daniel Otieno Migore v South Nyanza Sugar Co. Ltd
    [2018] eKLR
  • Gilbert Mariera Makori v Equity Bank Limited
    [2016] eKLR
  • Jennifer Nyambura Kamau v Humphrey Mbaka Nandi
    [2013] eKLR
  • Evans Otieno Nyakwana v Cleophas Bwana Ongaro
    [2015] eKLR
Jurisdiction invoked
Section 12(1)(b) of the Labour Relations Court Act

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 Union of Commercial Food and Allied Workers v Tanathi Water Services Board; Nol Turesh Pipeline Bulk Water Supply Company Limited (Interested Party) [2020] KEELRC 712 (KLR)", Case Analysis (2020). Cause No 298 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/712/eng@2020-07-17

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