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ELRCDismissedNot stated in judgment· [2020] KEELRC 1322 (KLR)

Kenya Union of Commercial, Food & Allied Workers v Kiambaa Diary Farmers Co-operative Society Limited [2020] KEELRC 1322 (KLR)

Employment and Labour Relations Court
30 March 2020
NMNzioki wa Makau
2,145 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a union's unfair dismissal claim because it had no recognition agreement with the employer, and slammed the union with costs.

What this practically means

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Executive summary

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The Claimant union sued the Respondent on behalf of the Grievant Peter Njuguna, alleging he was employed as a general labourer from 1st October 2009, later promoted to milk collector, and summarily dismissed on 5th July 2016 for allegedly adulterating milk without being given an opportunity to defend himself, contrary to Sections 41, 43 and 45 of the Employment Act. The Claimant sought reinstatement, damages for loss of employment, six months' wages compensation, interest, and in the alternative various terminal dues including notice pay, public holidays, annual leave, unpaid salary, service gratuity, overtime and house allowance. The Respondent denied the claims, asserting the Grievant was a casual loader on a one-year contract from July 2015, was found during a spot check on 8th July 2016 with adulterated milk and a can of water he could not explain, then absconded, leading to summary dismissal under the contract. Two witnesses testified. The court held the suit was brought by an intermeddler, as the union had no recognition agreement or CBA with the Respondent, and the union was therefore an improper party under the Labour Relations Act. On the merits, the court found the Grievant untruthful - he denied his signature on the contracts despite it matching, and insisted on a 5th July verbal dismissal contrary to the records - while the Respondent adduced evidence of a valid and fair reason for dismissal. The claim was dismissed in its entirety with costs against the Claimant Union for mounting a false claim. Execution was automatically stayed for 14 days pursuant to the COVID-19 practice directions.

Key legal issues

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01

Competence of the suit brought by a union without a recognition agreement

Holding

The suit was brought by an intermeddler as the union had no recognition agreement or CBA with the Respondent.

Reasoning

The court noted the Grievant was represented by a union which had no recognition agreement or CBA past or present with the Respondent. Under the Labour Relations Act, a union's authority to represent employees rests on agreements with the employer. Since the recognition matter was unresolved at filing, the union was an improper and incompetent party to mount the claim.

p. 3
02

Validity and fairness of the summary dismissal

Holding

The dismissal was founded on a valid and fair reason - the Grievant was found with adulterated milk and could not explain it, and absconded.

Reasoning

The Respondent's witness testified the Grievant was found during a spot check with adulterated milk and a can of water he could not explain, and that he failed to report to work thereafter, prompting summary dismissal per policy. The Grievant's untruthfulness about his signature on contracts and the date of dismissal undermined his credibility, and the Respondent's case prevailed on the veracity of evidence.

p. 3
03

Credibility of the Grievant's evidence

Holding

The Grievant was dishonest in denying his signature on the contracts and in insisting on a 5th July 2016 verbal dismissal contrary to the records.

Reasoning

The court found the Grievant's signature on the Claimant's papers tallied with that on the Respondent's contracts, showing he had signed them despite denying it. He also insisted he was dismissed verbally on 5th July 2016 whereas the records showed the incident leading to termination was on 8th July 2016. This disingenuousness weighed against the Claimant's case.

p. 3

Legal principles established

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  • A trade union only gets authority to represent an employee on the basis of agreements reached with the employer under the Labour Relations Act; without a recognition agreement the union is an improper party.

Court orders

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  1. 1.The suit is dismissed
  2. 2.Costs against the Claimant Union for mounting a false claim
  3. 3.Automatic stay of execution for 14 days; any execution after lapse of the 14 days must be sanctioned by the Court

Authorities

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Legislation

  • Employment ActSections 41, 43, 45, 41(2), 44, 43(1)
  • Labour Relations Act 2007Section 62
  • Civil Procedure RulesOrder 21 Rule 1 and 3

Cases cited (1)

  • Kenya Plantation & Agricultural Workers Union v Sotik Highlands Tea Estate Limited
    [2016] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court; dispute reported to the Minister under Section 62 of the Labour Relations Act 2007

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 & Allied Workers v Kiambaa Diary Farmers Co-operative Society Limited [2020] KEELRC 1322 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1322/eng@2020-03-30

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