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ELRCDismissedNot stated in the judgment (Cause filed 28 July 2020)· [2021] KEELRC 1489 (KLR)

Kenya Union of Sugar Plantation and Allied Workers v Chemelil Sugar Company Ltd [2021] KEELRC 1489 (KLR)

Employment and Labour Relations Court
16 June 2021
830 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court dismissed a union's unfair termination case because it rushed to court before completing mandatory conciliation and appeal steps under Kenyan labour law.

What this practically means

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Executive summary

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The Kenya Union of Sugar Plantation & Allied Workers sued Chemelil Sugar Co Ltd on 28 July 2020 on behalf of seven Grievants whose contracts were terminated on 9 July 2020 following disciplinary proceedings, seeking relief for unfair and unlawful terminations. The Respondent filed a defence and amended defence, and the Cause was heard on 9 November 2020 and 3 March 2021, with the Grievants' representative and the Respondent's Head of Human Resources testifying. The Court first addressed a jurisdictional question: the parties had a recognition agreement and collective bargaining agreements, and under Part VIII of the Labour Relations Act the dispute should have gone through conciliation. The Union did not demonstrate that it reported the dispute to the Cabinet Secretary, filed no affidavit attesting to failed conciliation, and no certificate of unresolved dispute was filed; the Court therefore found its jurisdiction was invoked prematurely. On the merits, the Court noted the Grievants received show-cause notices, attended a disciplinary hearing accompanied by Union representatives, and the Committee recommended reinstatement with final warnings; nevertheless the Managing Director substituted termination. The Grievants appealed within the 21 days allowed, but the Union moved the Court before the appeal period lapsed, thereby 'jumping the gun'. The Court indicated that had the suit not been premature, it would have found the substitution of reinstatement with termination procedurally and substantively unfair without an opportunity for representations, relying on persuasive South African authorities. The Court declined jurisdiction and dismissed the Cause with no order on costs, citing the social partnership between the parties. Delivered at Kisumu on 16 June 2021 by Radido Stephen, Judge.

Key legal issues

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01

Exhaustion of conciliation / prematurity

Holding

The Court's jurisdiction was invoked prematurely because the Union did not report the dispute to the Cabinet Secretary or demonstrate failed conciliation

Reasoning

The parties had a recognition agreement and CBAs. Part VIII of the Labour Relations Act (ss. 62–73) requires such disputes to go through conciliation. The Union did not show it reported the dispute to the Cabinet Secretary, filed no affidavit attesting to failure of conciliation, and no certificate of unresolved dispute was filed. Alternative dispute resolution is constitutionally recognised and cannot be ignored.

p. 2
02

Premature resort to Court before internal appeal period lapsed

Holding

The Union 'jumped the gun' by moving the Court before the 21-day period for determining the Grievants' appeals had lapsed

Reasoning

The Grievants appealed within the 21 days prescribed by the Human Resources Policy Manual, and the Board had 21 days to determine the appeals. The Union filed suit on 28 July 2020 before that period lapsed, depriving the Respondent of sufficient time to determine the appeals.

p. 2
03

Fairness of substituting reinstatement with termination

Holding

Had the suit not been premature, the Managing Director's substitution of reinstatement with termination would have been procedurally and substantively unfair

Reasoning

The Disciplinary Committee recommended reinstatement with final warnings, but the Human Resources Manager, who sat on the Committee, issued termination letters. The Managing Director should have given the Grievants an opportunity to make representations on the substituted sanction, consistent with persuasive South African authorities (NUMSA v ArcelorMittal; SARS v CCMA).

p. 2

Legal principles established

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  • A dispute between a union and employer bound by a recognition agreement and CBAs should first go through conciliation under the Labour Relations Act before the Court's jurisdiction is invoked
  • Where an employer intends to alter or substitute a disciplinary committee's recommendation (e.g. substituting reinstatement with termination), the employee should first be given an opportunity to make representations on the substituted sanction

Court orders

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  1. 1.The Cause is dismissed for want of jurisdiction (invoked prematurely)
  2. 2.No order on costs considering the social partnership between the Union and the Respondent

Authorities

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Legislation

  • Labour Relations ActPart VIII; sections 62, 63, 64, 65, 67, 68, 69, 73
  • Constitution of KenyaNot specified (recognition of alternative dispute resolution)

Cases cited (2)

  • National Union of Metalworkers of South Africa obo Members and Others v ArcelorMittal South Africa Limited and Others
  • SARS v CCMA and Ors (Kruger and Branford vs Metrorail Services (Durban) 2004 (3) BLLR (LAC)
    2004 (3) BLLR (LAC)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Labour Relations Act (exhaustion of internal dispute resolution/conciliation under Part VIII, sections 62–73); jurisdiction declined as prematurely invoked

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 Sugar Plantation and Allied Workers v Chemelil Sugar Company Ltd [2021] KEELRC 1489 (KLR)", Case Analysis (2021). Not stated in the judgment (Cause filed 28 July 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1489/eng@2021-06-16

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