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ELRCPartially AllowedCause No 976 of 2016· [2021] KEELRC 168 (KLR)

Kenya Plantation & Agricultural Workers Union v Migotiyo Plantations Limited [2021] KEELRC 168 (KLR)

Employment and Labour Relations Court
15 December 2021
8,533 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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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

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Executive summary

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The Kenya Plantation and Agricultural Workers Union claimed on behalf of over 300 grievants summarily dismissed by the Respondent employer in May 2016, alleging they were denied show cause letters, hearings and termination letters, and sought reinstatement or alternatively terminal benefits, twelve months' compensation and certificates of service. The Respondent maintained the grievants engaged in an unprotected strike from 18th to 20th May 2016 in solidarity with about 20 previously dismissed colleagues, ignored three memos to resume work, and were lawfully dismissed after show cause letters and a disciplinary hearing invitation were made available. The court framed three issues: whether the grievants were on strike, whether the dismissal was lawful, and entitlement to reliefs. It found the concerted refusal to work constituted a strike under section 2 of the Labour Relations Act, but the strike was unprotected as neither conciliation nor written strike notice preceded it, giving the employer justifiable substantive reasons for dismissal. However, the procedural fairness requirements of sections 41 and 45 of the Employment Act were not met: service of notices was ineffective, the hearing was scheduled within an implausibly short window, and no minutes or proof of individual service were produced, rendering the process cosmetic. A declaration of unfair and wrongful termination issued; reinstatement was refused as overtaken by events under section 12(3)(vii) of the ELRC Act, and CBA terminal dues including gratuity were declined because termination was substantively fair. Compensation of two months' salary per grievant was awarded, with certificates of service within 60 days, 50% costs to the Claimant, and interest at court rates. Judgment entered for the grievants on those terms.

Key legal issues

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01

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

Holding

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

Reasoning

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.

p. 8
02

Whether the strike was protected

Holding

No - the conciliation and strike notice requirements of section 76 of the Labour Relations Act were not met

Reasoning

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.

03

Whether there were valid and fair reasons for termination

Holding

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

Reasoning

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.

p. 9
04

Whether the summary dismissal complied with fair procedure under sections 41 and 45(2)(c) of the Employment Act

Holding

No - the procedure was procedurally unfair and the dismissal unlawful on that ground

Reasoning

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.

p. 10
05

Whether the claim was defeated by variance between pleadings and evidence

Holding

No - reading the pleadings as a whole, the Respondent was not prejudiced or taken by surprise

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.Declaration that the termination of the grievants was unprocedural, unfair and therefore wrongful
  2. 2.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 as termination was substantively fair
  4. 4.Compensation of the equivalent of two (2) months' salary to all grievants under section 49(1)(c) of the Employment Act
  5. 5.Respondent to issue a Certificate of Service to all grievants within 60 days of the judgment
  6. 6.Claimant awarded 50% of the costs of the suit
  7. 7.Interest at court rates from the date of judgment till payment in full

Authorities

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Legislation

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

Cases cited (21)

  • 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
  • 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) / [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
Original jurisdiction under the Employment and Labour Relations Court Act, 2011, section 12 (unfair termination claim 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 & 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.