Bernard Ongeta Mbura v Simba Apparels (EPZ) Limited; Tailors and Textile Workers Union (Interested Party) [2022] KEELRC 653 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether an employer may treat participation in an unprotected strike as unilateral termination of employment without disciplinary process
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
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.
Whether the notice dated 13.09.2019 terminating employment was valid
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
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.
Whether the appellant was constructively dismissed and entitled to remedies
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
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.
Legal principles established
#- 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
#- 1.The trial Court's order dismissing the suit in its entirety is set aside
- 2.A declaration is issued that the respondent terminated the appellant's contract of service constructively and unfairly
- 3.Each party to bear own costs of the appeal as well as the proceedings in the trial Court
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Sande v NCBA Bank Kenya PLC (Cause 269 of 2020) [2023] KEELRC 808 (KLR)[2023] KEELRC 808 (KLR)28 Mar 2023applied
Cite this brief
#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.