Kenya Building Construction Timber and Furniture Industries Employee Union v Weston Contractors (K) Ltd [2021] KEELRC 1894 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Grievants were unlawfully dismissed
The claim of unlawful dismissal failed; the Grievants declined a valid offer to return to work, so their employment cannot be said to have been unfairly terminated by the Respondent.
The evidence showed the Grievants and other workers staged a sit-in over accrued wages. The Respondent wrote letters dated 18 April 2012, 7 June 2012 and 5 June 2012 inviting them back. The Grievants declined unless paid for days not worked, a condition with no basis in law. A refusal of a genuine recall to duty defeats a claim of unfair termination.
Entitlement to severance pay
Dismissed; no redundancy was proved.
Severance pay attaches to redundancy. There was no evidence the Grievants' employment was terminated on account of redundancy, so the severance claim was unsupported and failed.
Leave pay and limitation
Leave pay allowed but limited to three years under Section 90 of the Employment Act.
In the absence of leave records to the contrary, the court assumed untaken leave but restricted the claim to the statutory three-year limitation period, awarding Kshs. 31,500 to the 1st Grievant and Kshs. 25,200 to the 2nd Grievant.
Legal principles established
#- An employee who, without good cause, declines an employer's offer to resume duty cannot later claim unfair termination
- Leave claims are limited to three years by the limitation period in Section 90 of the Employment Act
- The court is not bound by a Conciliator's recommendations unsupported by legal provisions
Court orders
#- 1.Judgment entered in favour of the 1st Grievant, Benard Ondieki Osoro, of Kshs. 31,500 being leave pay for 3 years
- 2.Judgment entered in favour of the 2nd Grievant, Jackson Kahindi Kiyuge, of Kshs. 25,200 being leave pay for 3 years
- 3.The amounts to attract interest at court rates from the date of judgment until payment in full
- 4.The Grievants to be issued with Certificates of Service
- 5.Each party to bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Labour Relations Act dispute reported to the Minister; claim filed as Memorandum of Claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Building Construction Timber and Furniture Industries Employee Union v Weston Contractors (K) Ltd [2021] KEELRC 1894 (KLR)", Case Analysis (2021). not_stated_in_judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1894/eng@2021-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.