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ELRCDismissedNot stated in judgment· [2021] KEELRC 1889 (KLR)

Kenya Airline Pilots Association v Kenya Airways PLC [2021] KEELRC 1889 (KLR)

Employment and Labour Relations Court
9 April 2021
JRJames Rika
1,614 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant Union filed this Claim on behalf of its member, a Pilot employed by the Respondent, who declined to take an additional flight on 12th December 2020 after a roster change. The Respondent issued a show cause letter and initiated disciplinary action. The Grievant instead invoked the grievance procedure under the Recognition Agreement and, through the Union, filed this Claim seeking declaratory orders that the disciplinary action violated Articles 41 and 47 of the Constitution, the Recognition Agreement and the CBA, together with permanent injunctions restraining the disciplinary process and victimization; the instant Application sought interim protective measures. The Respondent, through the affidavit of its Chief Human Resources Officer, explained the roster change, the show cause process, the grievance hearing (whose panel found no harassment), and its insistence on proceeding with the disciplinary process. The Court found no clear legal or contractual provision flouted warranting protective measures, holding that the Grievant's refusal of a lawful instruction was prima facie insubordination amounting to gross misconduct under Section 44(4) of the Employment Act. It declined to be used to stall disciplinary processes, noting the Grievant could argue his explanations before the disciplinary panel and seek remedies later if the process miscarried. Further, since the Claimant had reported a trade dispute under Section 62 of the Labour Relations Act on 25th February 2021, the matter fell outside the Court's jurisdiction and must first be exhausted before the Conciliator, referral lying only after a Section 69 certificate; parallel proceedings were an abuse of process. The Application was declined, the interim order discharged, and further proceedings in the Claim stayed pending conciliation. No authority was cited.

Key legal issues

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01

Whether to grant interim protective measures against an ongoing disciplinary process

Holding

Application declined; no violation or threat of violation of the Grievant's rights was established

Reasoning

The Court found the Grievant was informed in advance of a roster change and declined an additional flight, prima facie insubordination amounting to gross misconduct under Section 44(4) of the Employment Act. No clear legal, contractual or workplace instrument provision was shown to have been flouted. The Grievant would have a full opportunity to argue his explanations before the disciplinary panel, with recourse to the Court afterwards for remedies including reinstatement if the process miscarries.

p. 2
02

Whether the Court retains jurisdiction over a Claim while conciliation under the Labour Relations Act is pending

Holding

The matter falls outside the Court's jurisdiction; proceedings stayed pending conciliation

Reasoning

The Claimant reported a trade dispute to the Cabinet Secretary on 25th February 2021, invoking Section 62 of the Labour Relations Act. Once invoked, the dispute, including interlocutory differences, must be ventilated and exhausted before the Conciliator, and referral to the Court lies only after a Section 69 certificate and referral under Section 73 and Rule 5 of the E&LRC (Procedure) Rules, 2016. Parallel proceedings constitute abuse of both processes.

p. 3

Legal principles established

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  • Courts do not interfere with workplace disciplinary processes unless carried out in clear violation of applicable legal and contractual standards
  • An employee who declines the lawful command of the employer commits insubordination, an act of gross misconduct under Section 44(4) of the Employment Act
  • Once a trade dispute is reported and Section 62 of the Labour Relations Act is invoked, the dispute must be exhausted before the Conciliator before referral to the Court; parallel court and conciliation proceedings are not contemplated

Court orders

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  1. 1.The Application by the Claimant Union, amended on 22nd February 2021, is declined
  2. 2.Interim order issued on 11th March 2021, requiring the Respondent to keep on hold the disciplinary process, is discharged
  3. 3.Further proceedings in this Claim are stayed, pending the outcome of the conciliation process

Authorities

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Legislation

  • Constitution of KenyaArticles 41 and 47
  • Employment ActSection 44(4)
  • Labour Relations ActSections 2, 62, 69, 73
  • E&LRC (Procedure) Rules, 2016Rule 5
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Labour Relations Act and the E&LRC (Procedure) Rules, 2016 (employment dispute referred under the Court's jurisdiction); interim relief under Certificate of Urgency

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 Airline Pilots Association v Kenya Airways PLC [2021] KEELRC 1889 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1889/eng@2021-04-09

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