Kenya Union of Sugar Plantation and Allied Workers v Chemelil Sugar Company Ltd [2021] KEELRC 1489 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Exhaustion of conciliation / prematurity
The Court's jurisdiction was invoked prematurely because the Union did not report the dispute to the Cabinet Secretary or demonstrate failed conciliation
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.
Premature resort to Court before internal appeal period lapsed
The Union 'jumped the gun' by moving the Court before the 21-day period for determining the Grievants' appeals had lapsed
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.
Fairness of substituting reinstatement with termination
Had the suit not been premature, the Managing Director's substitution of reinstatement with termination would have been procedurally and substantively unfair
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).
Legal principles established
#- 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
#- 1.The Cause is dismissed for want of jurisdiction (invoked prematurely)
- 2.No order on costs considering the social partnership between the Union and the Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.