Kenya Plantation & Agricultural Workers Union v Migotiyo Plantations Limited [2021] KEELRC 168 (KLR)
The bottom line
#Kenya's Employment Court ruled a plantation's mass dismissal of striking workers was substantively fair but procedurally unfair, awarding two months' salary per worker.
What this practically means
#Executive summary
#Key legal issues
#Whether the grievants participated in a strike on 18th May 2016
Yes - their concerted refusal to work while congregating at the gate demanding audience with management constituted a strike under section 2 of the Labour Relations Act
The court adopted the statutory definition of a strike as cessation of work by employees acting in combination or a concerted refusal under a common understanding. It was undisputed the grievants refused to work on 18th May 2016 and congregated at the gate demanding to know the fate of about 20 dismissed colleagues. All witnesses were aware of the reason for congregating, and the court found the mobilisation was not coincidental. The constitutional right to strike under Article 41(2)(d) must be exercised in accordance with the Labour Relations Act.
Whether the strike was protected
No - the conciliation and strike notice requirements of section 76 of the Labour Relations Act were not met
The court applied the three sequential requirements in section 76. The dispute concerned dismissal of colleagues, a term and condition of employment, so the first stage was met. However, no evidence showed the grievance went through conciliation, and neither party led evidence of a written strike notice; the union never engaged the employer's dispute resolution mechanism under the CBA. Consequently the strike was unprotected, engaging section 80 and justifying disciplinary action.
Whether there were valid and fair reasons for termination
Yes - the Respondent proved on a balance of probabilities that participation in an unprotected strike and absence without lawful cause justified summary dismissal on 21st May 2016
The dismissal letters cited participation in an unlawful strike and absence from duty. The CBA permitted summary dismissal without warning for absence for three continuous working days. Three memos directing resumption of work went unheeded. The court found the substantively fair limb of section 45(2)(a) and (b) satisfied, holding the employer had justifiable reasons, consistent with authority that dismissal for illegal strikes may be upheld subject to section 41 compliance.
Whether the summary dismissal complied with fair procedure under sections 41 and 45(2)(c) of the Employment Act
No - the procedure was procedurally unfair and the dismissal unlawful on that ground
Service of show cause letters, hearing notices and termination letters was by memo at the gate and notice board, with no memo evidencing collection instructions filed and no proof of individual service on employees residing within the compound. The disciplinary hearing was set for 7.15–9.15 am on the day after the show cause letter, implausibly short for 324 employees, with no minutes filed. The court found the process cosmetic and the notice period insufficient, failing natural justice.
Whether the claim was defeated by variance between pleadings and evidence
No - reading the pleadings as a whole, the Respondent was not prejudiced or taken by surprise
The Respondent argued the claim pleaded business closure as the cause of termination while evidence at trial concerned lack of notice and hearing. The court accepted the binding principle that parties are bound by their pleadings but held all pleadings must be read together; paragraph 7 pleaded lack of notice and hearing, and RW1 testified fully on the dismissal process without protest. No different case was raised and no ambush occurred.
Legal principles established
#- Parties are bound by their pleadings; evidence at variance with the pleadings goes to no issue, but all the pleadings must be read together and no departure without prejudice will found a reversal
- A union has locus standi to institute claims on behalf of its members; whether an employee is a union member is a question of fact
- A strike is protected only if the dispute concerns terms and conditions of employment or recognition, the dispute is unresolved after conciliation, and seven days' written strike notice is given
- Participation in an unprotected strike is a breach of contract rendering the employee liable to disciplinary action including summary dismissal under section 44 of the Employment Act
- Even on summary dismissal, notification of reasons and a hearing before termination on grounds of misconduct are mandatory under section 41 of the Employment Act
- An employee must be given adequate time to prepare a defence to a disciplinary charge; a short or cosmetic process is inconsistent with natural justice
Court orders
#- 1.Declaration that the termination of the grievants was unprocedural, unfair and therefore wrongful
- 2.Reinstatement declined under section 12(3)(vii) of the Employment and Labour Relations Court Act, 2011
- 3.Terminal dues claimed under the CBA (including gratuity) declined as termination was substantively fair
- 4.Compensation of the equivalent of two (2) months' salary to all grievants under section 49(1)(c) of the Employment Act
- 5.Respondent to issue a Certificate of Service to all grievants within 60 days of the judgment
- 6.Claimant awarded 50% of the costs of the suit
- 7.Interest at court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Original jurisdiction under the Employment and Labour Relations Court Act, 2011, section 12 (unfair termination claim under the Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Plantation & Agricultural Workers Union v Migotiyo Plantations Limited [2021] KEELRC 168 (KLR)", Case Analysis (2021). Cause No 976 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/168/eng@2021-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.