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ELRCPartially AllowedCause No 976 of 2016· [2021] KEELRC 139 (KLR)

Kenya Plantation and Agricultural Workers Union v Migotiyo Plantations Limited [2021] KEELRC 139 (KLR)

Employment and Labour Relations Court
15 December 2021
8,534 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that even when workers join an unlawful strike, employers must still follow fair dismissal procedures or pay compensation.

What this practically means

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Executive summary

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The Kenya Plantation and Agricultural Workers Union sued on behalf of over 300 grievants summarily dismissed by the Respondent employer in May 2016, pleading that they were never served with warning letters, show cause letters, hearing notices or termination letters, and that business closures denied them essential services. It sought declarations of unfair termination, reinstatement or alternatively terminal dues under the CBA and twelve months' salary as compensation, certificates of service and costs. The Respondent maintained the dismissals were procedural, following an unprotected strike from 18th to 20th May 2016 in solidarity with 20 previously dismissed colleagues, and challenged the Court's jurisdiction. The Court framed three issues: whether the grievants engaged in a strike, whether the summary dismissal was lawful, and entitlement to reliefs. It found the concerted refusal to work amounted to a strike under Section 2 of the Labour Relations Act, which was unprotected for want of conciliation and written strike notice, so the dismissals were substantively justified. However, the Court found the procedure unfair: no proof of service of show cause letters, a same-day disciplinary hearing for 324 employees in two hours with no minutes, and an inadequate one-day response period. The dismissal was declared procedurally unfair and wrongful. Reinstatement was declined as overtaken by events under Section 12(3)(vii) of the ELRC Act; terminal dues under the CBA, including gratuity, were declined because the termination was substantively fair. Compensation equivalent to two months' salary was awarded under Section 49 of the Employment Act, with certificates of service within 60 days, 50% costs to the Claimant and interest at court rates from the date of judgment.

Key legal issues

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01

Whether the grievants participated in a strike on 18th May 2016

Holding

They did; their concerted refusal to work while demanding audience with management amounted to a strike under Section 2 of the Labour Relations Act, and it was unprotected for want of conciliation and strike notice

Reasoning

The Court found it undisputed that the grievants refused to work on 18th May 2016 while congregating at the gate to demand answers on 20 dismissed colleagues. Applying the statutory definition of strike, this concerted refusal constituted a strike. Testing it against Section 76 LRA, the dispute concerned terms and conditions of employment but there was no conciliation and no seven days' written strike notice, so the strike was unprotected under Section 80 LRA and a breach of contract justifying discipline under Section 44 Employment Act.

p. 8
02

Whether the summary dismissal was substantively justified

Holding

Yes; the Respondent discharged its burden of proving valid and fair reasons - participation in an unprotected strike and absence from duty without lawful cause

Reasoning

The dismissal letters cited participation in an unlawful strike and absenteeism. The CBA itself permitted summary dismissal without warning for absence of three continuous working days. Three memos directing resumption of duty on 18th May were ignored. The Court held the Respondent proved valid and fair reasons under Section 45(2)(a) and (b) of the Employment Act on a balance of probability.

p. 9
03

Whether the summary dismissal was procedurally fair

Holding

No; the dismissal was procedurally unfair and unlawful for failure to prove service of show cause letters and for an inadequate, cosmetic disciplinary process

Reasoning

Although the Respondent asserted that show cause letters, hearing notices and dismissal letters were dispatched and available at the gate, it filed no memo evidencing the invitation to collect them and led no proof of individual service despite knowing the grievants' residences within its compound. The disciplinary hearing was scheduled for the same day it was issued, between 7.15 am and 9.15 am for 324 employees, which the Court found impracticable and cosmetic, and no minutes were produced. A one-day notice to respond was inadequate per Bidco Africa.

p. 10
04

Whether the Claimant's evidence departed from its pleadings

Holding

No; there was no variance and no prejudice to the Respondent, who fully appreciated and met the Claimant's case

Reasoning

The Respondent argued the pleadings alleged termination by business closure while the evidence alleged absence of notice and hearing. The Court held parties are bound by pleadings but the totality of averments must be read together; paragraph 7 of the memorandum pleaded want of notice and hearing, and the Respondent testified on those very issues without raising any ambush.

p. 7
05

The Union's locus standi

Holding

The Union has standing to sue on behalf of its members; the point was not contested and the authorities cited are apposite

Reasoning

The Court noted the Respondent never contested the Union's standing, rendering the issue unnecessary, but endorsed the Court of Appeal's holding in Modern Soap Factory confirming a union's locus standi to institute claims on behalf of members, membership being a question of fact.

p. 6

Legal principles established

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  • A cessation of work by employees acting in combination to compel the employer to accede to a demand constitutes a strike under Section 2 of the Labour Relations Act
  • A strike is protected only if it satisfies Section 76 of the Labour Relations Act: dispute over terms and conditions, exhaustion of conciliation, and seven days' written strike notice
  • Procedural fairness under Sections 41 and 45 of the Employment Act requires proof of service of show cause letters and a genuine, adequate opportunity to be heard before summary dismissal
  • Parties are bound by their pleadings, but the totality of averments is considered and no variance arises where the respondent was not prejudiced or taken by surprise

Court orders

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  1. 1.Declaration that termination of the grievants was unprocedural, unfair and therefore wrongful
  2. 2.Prayer for reinstatement declined under Section 12(3)(vii) of the Employment and Labour Relations Court Act, 2011
  3. 3.Terminal dues claimed under the CBA (including gratuity) declined
  4. 4.Compensation of the equivalent of two (2) months' salary awarded to all grievants under Section 49(1)(c) of the Employment Act
  5. 5.Respondent to issue Certificates of Service to all grievants within 60 days of the judgment
  6. 6.Claimant awarded 50% of costs of the suit
  7. 7.Judgment entered for the grievants on the foregoing terms
  8. 8.Interest at court rates from the date of judgment till payment in full

Authorities

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Legislation

  • Employment ActSections 35, 41, 44, 45(2), 49(1)(c), 49(4)
  • Labour Relations Act, 2007Sections 2, 76, 79, 80(1)(a)
  • Employment and Labour Relations Court Act, 2011Section 12(3)(vii)
  • Evidence ActSection 107(1)
  • Constitution of Kenya, 2010Article 41(2)(d)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of Kenya, 2010Articles 159(2)(d), 48

Cases cited (22)

  • Kenya National Private Security Workers Union v Lavington Security Limited
    [2013] eKLR
  • Transport Workers Union v Crown Bus Service Limited
    [2017] eKLR
  • Modem Soap Factory v Kenya Shoe and Leather Workers Union
    [2020] eKLR
  • Zephania O. Nyambane & Another v Nakuru Water & Sanitation Services Company Limited
    (2013) eKLR
  • Ongaya J. (as cited in Zephania O. Nyambane)
  • Patrick Abuya v Institute of Certified Public Accountants Kenya (ICPAK) & Another
    [2015] eKLR
  • Alphonse Maghanga Mwachanya v Operation 680 Limited
    [2013] eKLR
  • Michael Odhiambo Opiyo v Bidco Africa Limited
    [2021] eKLR
  • Bottomley Musamali Jumba v Defence Forces Canteen Organization
    [2014] eKLR
  • Daniel Otieno Migore v South Nyanza Sugar Company Limited
    (2018)
  • Raila Amolo Odinga & Another v IEBC & 2 Others
    (2017) eKLR / [2017] eKLR
  • Anthony Korir v Imarisha Sacco Society Limited
    (2020)
  • TMT Services & Supplies (PTY) Ltd v Samwu Obo Felicia Lungile
    Case No. JA32/2017
  • Moses Ochieng v Unilever Kenya Limited
    (2018)
  • David Gitonga Ole Tukai v Francis Arap Muge & 2 Others
  • Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 others
    [2014] eKLR
  • Adetoun Oladeji (NIG) Ltd v Nigeria Breweries PLC
    S.C. 91/2002
  • Elizabeth O. Odhiambo v South Nyanza Sugar Company Limited
    [2019] eKLR
  • Lamathe Hygiene Food v Wesley Patrick Simasi Wafula & 8 others
    [2016] eKLR
  • Maseno University v Universities Academic Staff Union
    [2016] eKLR
  • Mohammed Yakub Athman & 18 Others v Kenya Ports Authority
    [2017] eKLR
  • Loice Atieno v Kenya Commercial Bank
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, 2011 (jurisdiction as employer–employee dispute; matters determined under the Employment 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 Plantation and Agricultural Workers Union v Migotiyo Plantations Limited [2021] KEELRC 139 (KLR)", Case Analysis (2021). Cause No 976 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/139/eng@2021-12-15

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