Kenya Union of Commercial, Food and Allied Wokers v Menengai Oil Refineries Limited [2020] KEELRC 1452 (KLR)
The bottom line
#A Kenyan court dismissed a union-backed unfair dismissal claim because the employee brought an outsider to his disciplinary hearing instead of a fellow employee.
What this practically means
#Executive summary
#Key legal issues
#Standing of the claimant union without a recognition agreement
Introducing the claimant union in the proceedings was irregular; the union had no recognition agreement and the grievant's membership card postdated the notice to show cause
The court held that without recognition there is no linkage between respondent and union, and the union has no representatives at the shop floor. The grievant's only proof of membership was a card dated 8th September 2016, a month after the notice to show cause. The objection was raised late at hearing but the court still found the union's introduction irregular. This underpinned the dismissal of the entire claim.
Entitlement to accompaniment at disciplinary hearing under section 41 Employment Act
The grievant was lawfully advised to bring a fellow employee; bringing the claimant's official (a stranger to the respondent) was contrary to section 41 and he lost his right to a hearing
Section 41 entitles the employee to another employee or a shop floor union representative of his choice. Because the employer had no recognition agreement with the union, the union official was not a shop floor representative. The grievant, correctly advised to bring a fellow employee, opted to bring a third party and thus forfeited the hearing opportunity.
Whether termination was unfair for want of due process
The termination was not unfair; the grievant frustrated his own employment by refusing to attend the hearing as directed
The grievant was issued a notice to show cause, responded, and was invited to a disciplinary hearing but declined to attend with a fellow employee as directed. Had he followed due process his employment would have been secured. The respondent, which could have summarily dismissed him, instead terminated with notice pay, which the court called generous.
Legal principles established
#- An employee facing an internal disciplinary hearing is entitled only to another employee or a shop floor union representative of his choice, not a third party or external union official absent a recognition agreement
- An employee who squanders the internal grievance handling mechanisms provided by the employer cannot later claim unfair treatment
- Trade union access to the shop floor for disciplinary proceedings depends on recognition by the employer under section 54 of the Labour Relations Act
Court orders
#- 1.The claimant's case for the grievant is found without merit and dismissed
- 2.The grievant to undertake handover pursuant to the notice terminating employment dated 25th October, 2016 and collect his Certificate of Service
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment and Labour Relations Court Act); claim filed as a labour cause
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial, Food and Allied Wokers v Menengai Oil Refineries Limited [2020] KEELRC 1452 (KLR)", Case Analysis (2020). Cause No. 476 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1452/eng@2020-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.