Transport Workers Union v Greatrift Expresss Shuttle [2020] KEELRC 817 (KLR)
The bottom line
#Kenyan drivers who went on strike without notice lost their dismissal claims but still won back-pay for being paid below the legal minimum wage.
What this practically means
#Executive summary
#Key legal issues
#Whether the grievants resigned or were dismissed
The claimant failed to prove dismissal; the respondent proved on a balance of probability that the grievants engaged in an unlawful strike and voluntarily resigned.
The grievants admitted going on strike without serving the seven days' written notice required under section 76 of the Labour Relations Act, making the strike unprotected. The unrebuted evidence of RW1 and RW2 was that the grievants refused to resume work even after the Director travelled from Eldoret to talk to them. On that evidence the court found no dismissal was proved and held that the grievants voluntarily resigned after their unlawful withdrawal of labour.
Whether the termination was unfair and unlawful
In view of the finding of voluntary resignation, the question of unfair termination did not arise.
Having found that the grievants resigned voluntarily rather than being dismissed, the court declined to determine the fairness of any termination. The employees' own unlawful, unprotected strike and refusal to resume work led to the separation, so the protective machinery of sections 41, 45 and 47(5) of the Employment Act was not engaged on the facts.
Whether the grievants were entitled to salary underpayment under the Wage Orders
The claim for underpayment succeeded; the grievants, as medium size vehicle drivers, were entitled to minimum wages under the 2013 and 2015 Wage Orders plus 15% house allowance.
The grievants drove 3000 cc public service vans which fell under the medium size vehicle category under the General Wage Orders. The court computed monthly minimum pay of Kshs. 19,093.15 under the 2013 Order and Kshs. 21,384.42 under the 2015 Order (including 15% house allowance), against an actual basic salary of Kshs. 10,000 per month, and awarded the arrears per grievant for their respective periods of service, limited to sums actually claimed.
Legal principles established
#- A strike undertaken without the seven days' written notice required by section 76 of the Labour Relations Act is an unprotected strike.
- The burden of proving unfair dismissal lies on the employee under section 47(5) of the Employment Act, and where the employer proves voluntary resignation following an unprotected strike, no compensation or notice pay is payable.
- Employees are still entitled to payment of wages at not less than the prescribed minimum wage under the applicable Wage Orders, notwithstanding that a claim for unfair dismissal fails.
Court orders
#- 1.Judgment entered for the claimant directing the respondent to forthwith pay the sums awarded for salary underpayment to the respective grievants, less statutory deductions
- 2.Specific underpayment awards to each individual grievant as itemised (e.g. David Nduati Kshs. 278,781.80; Jackson Karari Kshs. 270,864.02; Cyrus Wachira Kshs. 298,134.35; John Konye Kimani Kshs. 298,134.35; Peter Mwangi Kshs. 102,460.32; John Gitau Kshs. 278,781.80; George Muturi Kshs. 195,590.44; Ken Chirchir Kshs. 59,422.10; Peter Njoroge Kshs. 261,765.87; Nahashon Kienje Kshs. 95,075.36; Francis Njoroge Kshs. 316,318.77; Daniel Wainaina Kshs. 434,516.72; Paul Ngacha Kshs. 278,781.80; John Bari Karuri Kshs. 106,959.78; Karl Kanyi Muriithi Kshs. 284,590.06)
- 3.Claimant awarded costs of the suit
- 4.Interest on the awarded sums at court rate from the date of filing the suit
- 5.Claims of grievants Jacob Mwangi and Amon Ruto, who withdrew, marked as withdrawn
- 6.Reinstatement and other reliefs (prayers b-f, salary in lieu of notice, compensation for unfair termination, service pay, safari allowance, and claim for salary for 2016 and leave) dismissed
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (suit for unfair termination and employment benefits of unionisable employees)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Transport Workers Union v Greatrift Expresss Shuttle [2020] KEELRC 817 (KLR)", Case Analysis (2020). Cause No. 2369 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/817/eng@2020-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.