Kenya Union of Commercial Food and Allied Workers (KUCFAW) v Home Africa Limited [2020] KEELRC 794 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant union had locus standi absent a recognition agreement
The union has locus to represent the grievants and to sue; recognition is only necessary for collective bargaining, while representation flows from membership.
The court distinguished recognition from representation. Article 41(2)(c) of the Constitution guarantees every worker the right to join and participate in a trade union, and section 4(1)(b) of the Labour Relations Act gives every employee the right to join a union. The respondent did not deny the grievants' membership. Relying on the Africair decision, membership itself creates the right and obligation of representation, whereas recognition concerns the union-employer relationship for collective bargaining under section 54(1).
Whether the redundancy of the 14 grievants was fair and lawful
The termination on account of redundancy was unfair because the respondent failed to comply with section 40(1) of the Employment Act.
The respondent issued the notice of redundancy and termination letters within one month, terminating the grievants before expiry of the one-month notice period it had itself stated. It produced no evidence of financial challenges or restructuring, no document proving compliance with section 40, and no proof of notice to the labour officer. Following Thomas De La Rue and Kenya Airways, the procedural conditions in section 40 must be strictly observed; failure to notify the union and labour officer rendered the redundancy unfair.
What reliefs the grievants are entitled to
Each grievant awarded notice pay, two months' compensation and 11 days' June 2018 salary, totalling Kshs.71,228.00; claims for anticipatory earnings, underpayment, severance and maximum compensation failed.
Terminal dues were found payable notwithstanding allegations that some payments had been made, as the respondent produced no proof of payment or that any grievants were disinterested. Severance pay requires a completed year of service, which the grievants on one-year contracts had not served. Underpayment was unproved on the evidence. Compensation was limited to two months' salary under section 49(4)(e) given the six months' length of service.
Legal principles established
#- Recognition of a trade union for collective bargaining is distinct from, and not a precondition to, the union's right to represent its members; locus to sue flows from membership.
- An employer who fails to produce evidence of compliance with section 40(1) of the Employment Act and of notice to the labour officer effects an unfair redundancy.
- Salary for a future unworked period of a contract constitutes anticipatory earnings not recoverable and not provided for under section 49 of the Employment Act.
Court orders
#- 1.Each grievant is awarded one month's pay in lieu of notice
- 2.Each grievant is awarded two months' salary as compensation for unfair termination
- 3.Each grievant is awarded pay for 11 days worked in June 2018
- 4.In total, each grievant is awarded Kshs.71,228.00
- 5.Costs of the suit assessed at Kshs.50,000 in favour of the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court Act, Labour Relations Act, 2007 and the Constitution of Kenya (Employment and Labour Relations Court jurisdiction under Article 162(2) invoked through the enabling statutes)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Union of Comercial, Food and Allied Workers v Magunas Super Stores Limited [2022] KEELRC 553 (KLR)[2022] KEELRC 553 (KLR)9 Mar 2022
- Charles Kasisi & 10 others v Kenya Broadcasting Corporation [2020] KEELRC 218 (KLR)[2020] KEELRC 218 (KLR)11 Nov 2020
Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial Food and Allied Workers (KUCFAW) v Home Africa Limited [2020] KEELRC 794 (KLR)", Case Analysis (2020). Cause No. 955 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/794/eng@2020-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.