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ELRCPartially AllowedELRC Appeal (Mombasa), Memorandum of Appeal filed 16.08.2021 against judgment delivered 30.06.2021 in Industrial Cause (trial Court)· [2022] KEELRC 653 (KLR)

Bernard Ongeta Mbura v Simba Apparels (EPZ) Limited; Tailors and Textile Workers Union (Interested Party) [2022] KEELRC 653 (KLR)

Employment and Labour Relations Court
25 February 2022
4,592 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 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 appellant, a machine operator employed on a one-year renewable contract, appealed against a trial Court judgment of 30 June 2021 dismissing his claim for unfair termination. He and other employees went on strike on 9 September 2019 over fresh elections for a shop steward. Two return to work formulae were concluded through the labour office but the workers did not resume duty. The respondent declared their positions vacant and invited applications. The trial Court found the claimants had unilaterally terminated their contracts by absconding. On first appeal, the Court re-evaluated the evidence. It held the strike was unprotected under the Labour Relations Act since it concerned a shop steward election, not terms and conditions of employment, and lacked seven days' notice. However, it found the trial Court erred in law in deeming the appellant to have unilaterally terminated himself; under section 80 of the Labour Relations Act, the exclusive route for employers dealing with unprotected strikers is disciplinary action with notice and hearing under section 41 of the Employment Act. Collective punishment is impermissible. The Court rejected the notice dated 13.09.2019 as unreliable. It declared the appellant was constructively and unfairly terminated when his position was declared vacant without due process, but denied compensation and all contractual reliefs because he contributed 100% to the termination through the unprotected strike and failure to honour return to work formulae. The appeal was partially allowed; the dismissal of the suit was set aside and a declaration of constructive and unfair termination issued, with each party bearing own costs.

Key legal issues

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01

Whether an employer may treat participation in an unprotected strike as unilateral termination of employment without disciplinary process

Holding

No. The employer must invoke section 80 of the Labour Relations Act and subject the employee to disciplinary action under section 41 of the Employment Act before termination

Reasoning

The trial Court found the appellant unilaterally terminated himself by refusing to resume duty. On appeal, the Court re-evaluated the evidence, held the strike was unprotected because it was not about terms and conditions of employment and lacked 7 days' notice, but held that even so, section 80 LRA mandates disciplinary process per section 41 Employment Act. Deeming the contract unilaterally terminated without notice and hearing was an error of law.

p. 3
02

Whether the notice dated 13.09.2019 terminating employment was valid

Holding

The trial Court did not err in rejecting the notice; its author was unidentified and, in any event, even a valid notice would not have constituted fair termination without due process

Reasoning

The notice was written by an unknown person from the respondent's management; the director was not named and the appellant could have sought a handwriting expert. Further, even if issued, the notice amounted to collective punishment, impermissible under the constitutional and statutory regime, and could not serve as a fair and lawful termination.

p. 4
03

Whether the appellant was constructively dismissed and entitled to remedies

Holding

Yes - the declaration of vacancies without disciplinary process was a fundamental breach amounting to constructive dismissal, but no compensation was awarded due to 100% contribution

Reasoning

The respondent declared the appellant's position vacant and invited reapplication without subjecting him to disciplinary action, a fundamental breach of contract. The appellant did not condone the breach since he refused to reapply. However, under section 49 of the Employment Act, his participation in the unprotected strike, failure to honour two return to work formulae, and bypassing union grievance mechanisms constituted 100% contribution, defeating compensation and contractual benefits.

p. 5

Legal principles established

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  • Section 80 of the Labour Relations Act, 2007 is the exclusive path to be invoked by employers in dealing with employees involved in unprotected strikes, requiring due process of notice and hearing before any punishment
  • Collective punishment is impermissible in Kenyan employment law; every employee's case must be considered on its unique merits
  • The ultimatum principle does not apply in cases of unprotected strikes in Kenya

Court orders

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  1. 1.The trial Court's order dismissing the suit in its entirety is set aside
  2. 2.A declaration is issued that the respondent terminated the appellant's contract of service constructively and unfairly
  3. 3.Each party to bear own costs of the appeal as well as the proceedings in the trial Court

Authorities

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Legislation

  • Employment Act, 2007sections 35, 41, 43, 45, 49
  • Labour Relations Act, 2007sections 76, 79, 80(1), 80(1)(b)
  • Labour Relations Court Act, 2007section 79
  • Constitution of Kenyanatural justice provisions

Cases cited (3)

  • Redlands Roses Limited-Versus-Kenya Plantations and Agricultural Workers Union
    [2020] eKLR
  • Kenya Plantation & Agricultural Workers’ Union –Versus- Roseto Flowers
    Industrial Cause No. 44 of 2013; [2013] eKLR
  • Kenya Plantation and Agricultural Workers Union –Versus- Carzan Flowers
    [2013] eKLR
On appeal from
Magistrates' Court (trial Court, employment matter)
null
Jurisdiction invoked
First appeal to the Employment and Labour Relations Court from the trial Court's judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bernard Ongeta Mbura v Simba Apparels (EPZ) Limited; Tailors and Textile Workers Union (Interested Party) [2022] KEELRC 653 (KLR)", Case Analysis (2022). ELRC Appeal (Mombasa), Memorandum of Appeal filed 16.08.2021 against judgment delivered 30.06.2021 in Industrial Cause (trial Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/653/eng@2022-02-25

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