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ELRCPartially AllowedMemorandum of Claim filed 19th June 2015 (ELRC)· [2020] KEELRC 852 (KLR)

Kenya County Government Workers Union v County Public Service Board of Kiambu County [2020] KEELRC 852 (KLR)

Employment and Labour Relations Court
19 June 2020
4,129 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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The Employment Court ruled that Kiambu County unfairly sacked workers whose contracts never stated they were on probation, and awarded them notice pay and compensation.

What this practically means

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Executive summary

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The claimant trade union, representing county government workers, sued on behalf of 17 former employees (grievants) of the defunct Municipal Council of Kiambu who were employed on 5th July 2012 and 1st August 2012 and whose employment was terminated on 4th December 2012. The claimant sought declarations that the respondent violated Articles 28 and 47 of the Constitution, the Employment Act and its CBA, and prayed for reinstatement and payment of salaries for the period of unemployment. The respondent denied the claimant's capacity, maintained that the grievants were on probation and were terminated under Section 42 of the Employment Act after failing to qualify in fresh recruitment prompted by complaints of nepotism, and argued that by applying for the advertised positions the grievants accepted termination by conduct and were estopped. The court found the union had locus standi, evidenced by deduction of union dues from the grievants' payslips. It held the grievants were not on probationary contracts since their appointment letters did not expressly state probationary terms, entitling them to one month's notice under Section 35. No valid reason for termination was proved: the advertised positions could not be reconciled with the grievants' positions, and no evidence showed interviews were held or qualifications lacking. Even on probation, Section 42(4) required seven days' notice. The court declined to declare violations of the Constitution or the CBA, refused reinstatement as time-barred under Section 12(3)(c) of the ELRC Act, and awarded each grievant four days' December 2012 salary, one month's pay in lieu of notice and three months' compensation, with costs to the claimant and interest from the date of judgment.

Key legal issues

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01

Locus standi of the Claimant union

Holding

The Claimant had locus standi to institute the suit on behalf of the grievants, as union dues deducted from their payslips proved membership

Reasoning

Article 41(2)(c) of the Constitution and section 4 of the Labour Relations Act protect the right to join a trade union. Section 48(3) of the Labour Relations Act makes Form S proof of membership. CW1's payslip for November 2012 showed union dues deducted from her salary, evidencing membership and grounding the union's right to sue on the grievants' behalf.

p. 5
02

Whether the grievants were on probationary contracts

Holding

The grievants were not on probationary contracts because their letters of appointment did not state that they were on probation

Reasoning

Section 2 of the Employment Act defines a probationary contract as one in writing which expressly states it is for a probationary period. The letters of engagement exhibited by the claimant did not state probationary terms and did not provide for notice of termination. The grievants were therefore entitled to one month's notice or pay in lieu under Section 35 of the Employment Act.

p. 5
03

Substantive and procedural fairness of the termination

Holding

The termination was both substantively and procedurally unfair: no valid reason was proved and no notice was issued

Reasoning

There was no evidence that the respondent was compelled to withdraw the employment or that fresh interviews were held and the grievants failed to qualify; the Ombudsman correspondence did not substantiate the nepotism complaints. The advertised positions did not account for the positions held by the grievants, and no qualifications or replacements were identified. Procedurally, even on probation, Section 42(4) required a minimum of 7 days' notice, which was never issued.

p. 7
04

Entitlement to reliefs

Holding

Violation of the Employment Act was established; the alternative remedy of compensation was awarded in place of reinstatement, plus pay in lieu of notice and four days' December 2012 salary

Reasoning

The CBA violation was not proved as the CBA was not produced, and no constitutional violation was declared since the Employment Act provides adequate remedies. Reinstatement was time-barred under Section 12(3)(c) of the ELRC Act (3-year limit), so compensation under Section 49 of the Employment Act was awarded instead, together with pay in lieu of notice which RW1 admitted was not given, and the unpaid December 2012 salary.

p. 8

Legal principles established

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  • A probationary contract must be in writing and expressly state that it is for a probationary period; absent such express terms, the employee is entitled to statutory notice of termination
  • Union membership evidenced by deduction of union dues from salary grants a trade union locus standi to institute suit on behalf of grievants
  • Even a genuine probationary employee is entitled to a minimum of 7 days' notice of termination under Section 42(4) of the Employment Act

Court orders

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  1. 1.Four days' salary for December 2012 awarded to each grievant
  2. 2.One month's salary in lieu of notice awarded to each grievant
  3. 3.Three months' salary as compensation for unfair termination awarded to each grievant
  4. 4.The claimant to tabulate the award for each grievant within 30 days and forward the tabulation to the respondent for confirmation for purposes of preparation of a decree
  5. 5.The respondent to pay the claimant's costs, with interest accruing from the date of judgment

Authorities

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Legislation

  • Constitution of KenyaArticles 28, 41(1), 41(2)(c), 47, 159(2)(d), 48
  • Labour Relations ActSection 4; Section 48(3)
  • Employment Act 2007Section 2; Section 35; Section 42(1); Section 42(4); Section 45(3); Section 49; Section 49(4)
  • Employment and Labour Relations Court ActSection 12(3)(c)
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (7)

  • Kenya National Union of Nurses v Attorney General Acting 7 Another
    [2012] eKLR
  • 748 Air Services Limited v Theuri Munyi
    [2017] eKLR
  • McIlKenny v Chief Constable of West Midlands
    [1980] ALL ER 227
  • Benson Githinji v Attorney General & 4 Others
  • Kenya Airways Limited v Aviation & Allied Workers union Kenya & 3 Others
    [2014] eKLR
  • Evans Kiage Onchwari v Hotel Ambassadeur Nairobi
    [2016] Eklr
  • Samuel G. Momanyi v the Attorney General & Another
    [2012] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, Section 12 (Employment Act remedies; Article 41 of the Constitution invoked)

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 County Government Workers Union v County Public Service Board of Kiambu County [2020] KEELRC 852 (KLR)", Case Analysis (2020). Memorandum of Claim filed 19th June 2015 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/852/eng@2020-06-19

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