Kenya Union of Domestic, Hotels,Educational Institutions and Hospital Workers v Board of Management of Butere Girls High School [2021] KEELRC 1794 (KLR)
The bottom line
#A Kenyan court upheld the dismissal of two school staff because the school followed fair procedure and the union failed to prove its money claims with actual evidence.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the dismissals
The Board substantially complied with sections 35(1) and 41 of the Employment Act; failure to directly invite the Union was not fatal since the Grievants were informed of their right to be accompanied
Both Grievants received show-cause letters, responded in writing, and were invited to oral hearings before a subcommittee and the full Board. The invitation letters informed them of the right to attend with a colleague or trade union representative. They attended without union representation. The Court held that direct notice to the Union was unnecessary because the statutory right to be accompanied was communicated to the employees themselves.
Substantive fairness of the dismissals
The Board proved valid and fair reasons for dismissing both Grievants
The Board's Secretary testified to specific allegations against each Grievant, including misconduct towards parents and disrespect by Mrs Muhonja, and misuse of a phone, assault on a student, unauthorised food sales, failure to secure dormitories and absenteeism by Mrs Anyanda. Neither Grievant testified to deny the allegations, and the Union's cross-examination did not interrogate the validity of the reasons, so the burden on the employer was discharged.
Claim for CBA benefits
The Union failed to prove the monetary claims under the CBA
The Union pleaded entitlement to all monies, allowances and benefits under the CBA but never disclosed the particulars in the pleadings, witness statements or oral testimony. It raised them only in submissions. Because these are facts requiring evidence, the Court held the evidential burden was not discharged and rejected those heads of claim.
Legal principles established
#- Section 41 of the Employment Act requires an employer to afford an employee an opportunity to make representations before termination, with a colleague or trade union representative present
- Where the employee is informed of the right to be accompanied by a trade union representative, the employer's failure to directly invite the union to the hearing is not fatal
- Under sections 43 and 45 of the Employment Act the employer must prove valid and fair reasons for dismissal, but where the employee does not testify and the allegations are not interrogated in cross-examination, the employer's evidence may discharge that burden
- Claims for contractual benefits under a CBA must be pleaded and proved by evidence, not raised for the first time in submissions
Court orders
#- 1.The Cause is dismissed
- 2.Each party to bear its own costs
- Jurisdiction invoked
- First-instance jurisdiction under the Employment and Labour Relations Court Act over a wrongful summary dismissal cause under the Employment Act, 2007 and Articles 41, 47 and 50 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Domestic, Hotels,Educational Institutions and Hospital Workers v Board of Management of Butere Girls High School [2021] KEELRC 1794 (KLR)", Case Analysis (2021). Cause No 241 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1794/eng@2021-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.