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ELRCPartially AllowedCause No E385 of 2020· [2022] KEELRC 1346 (KLR)

Kenya Chemicals Workers Union v Roto Moulders (Cause E385 of 2020) [2022] KEELRC 1346 (KLR)

Employment and Labour Relations Court
14 July 2022
MOMaureen Onyango
3,983 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant union reported a trade dispute after twelve of the Respondent's employees, who had joined the union in July 2017, received termination letters. The Respondent contended the employees were declared redundant and paid severance, and that most had denied joining the union. The conciliator found the terminations to be unfair labour practice and recommended compensation; the Respondent did not comply. The court framed three issues: union membership, the true reason for termination, and remedies. It held the union had locus standi, since the employer had not proved the grievants never joined or had resigned, and stressed that an employer's only role upon receiving a check-off form is to deduct and remit dues, any inquiry of the employee amounting to intimidation. The court rejected the redundancy defence: the letters cited misconduct grounds and a disciplinary hearing, while redundancy by definition involves no employee fault, and no evidence of any hearing was produced. The terminations were found to be on account of union membership, violating the grievants' constitutional right of association, and unlawful under Section 45(2) of the Employment Act for non-compliance with Sections 40, 41 and 43. Reinstatement was refused as unavailable beyond three years. Each grievant was awarded maximum compensation of twelve months' salary under Section 49(4), plus one year's annual leave, totalling Kshs.3,509,428.28, with costs of Kshs.80,000/= and interest from the date of judgment.

Key legal issues

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01

Locus standi of the union to represent the grievants

Holding

The Respondent failed to prove the grievants did not join or had resigned from the union; the Claimant had locus standi to represent them.

Reasoning

The Respondent did not dispute that all grievants' names appeared on the check-off forms, nor produce evidence of resignation. The letters disowning signatures were found to be products of intimidation. The court distinguished membership from recognition, holding that membership under Section 48 of the Labour Relations Act entitled the union to represent the grievants regardless of any recognition agreement.

p. 8
02

Whether terminations were by redundancy or for union membership

Holding

The terminations were on account of joining union membership and were a violation of the grievants' right to association; they were not redundancies.

Reasoning

The termination letters cited misconduct grounds and referred to a disciplinary hearing, inconsistent with redundancy, which presupposes no fault. Warning and suspension letters dated as far back as 2009 could not ground discipline in July 2017. The timing - immediately after the employer interrogated each grievant on union membership - established the terminations were for union membership, contravening the Constitution, the Labour Relations Act and the Employment Act.

p. 12
03

Compliance with Sections 40, 41 and 43 of the Employment Act

Holding

The Respondent proved no compliance with Section 40 (redundancy), Section 41 (procedure) or Section 43 (proof of reasons), rendering the terminations unlawful under Section 45(2).

Reasoning

No employee was notified of an intended redundancy and the letters gave misconduct reasons instead. No evidence of any disciplinary hearing was produced beyond the assertions in the letters. The employer therefore failed to discharge the burden of proving valid reasons and a fair procedure, rendering each termination unlawful whichever route it took.

p. 12
04

Remedies

Holding

Reinstatement unavailable (beyond three years); each grievant awarded maximum 12 months' compensation and one year's annual leave.

Reasoning

Considering the infringement of the grievants' right to join the union, the lack of due process, invalid reasons, and long service of over ten years for most grievants, the court exercised its discretion under Section 49(4) of the Employment Act to award the maximum compensation of twelve months' salary for each grievant, plus one year's annual leave, in the alternative to reinstatement.

p. 13

Legal principles established

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  • Once an employer receives a check-off form from a trade union, its only role is to commence deduction of union dues and remit them to the union; any inquiry of the employee about union membership by the employer is deemed intimidation.
  • Union membership (Section 48, Labour Relations Act) and recognition (Section 54) are distinct concepts; a union may represent its members even absent a recognition agreement.
  • Redundancy connotes no fault on the part of the employee; termination preceded by a disciplinary hearing cannot be a redundancy.
  • The burden of proving leave records lies with the employer under Sections 10 and 74 of the Employment Act.

Court orders

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  1. 1.Reinstatement declined as unavailable (more than three years since termination)
  2. 2.Each grievant awarded maximum compensation equivalent to twelve (12) months' salary under Section 49(4) of the Employment Act
  3. 3.Each grievant awarded annual leave for one year, payable per the tabulation totalling Kshs.3,509,428.28 for all grievants
  4. 4.Respondent to pay the Claimant's costs assessed at Kshs.80,000/= to cover reasonable disbursements and other attendant expenses
  5. 5.Decretal sum to attract interest at court rates from date of judgment

Authorities

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Legislation

  • Employment ActSections 2, 10, 40, 41, 43, 45, 49(4), 74
  • Labour Relations ActSections 48, 54
  • Labour Institutions ActSection 15(c)
  • Employment and Labour Relations Court ActNot specified (reinstatement within three years)
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticles 48, 159(2)(d)
  • ILO Convention No. 87Articles 2 and 3(2)
Jurisdiction invoked
Article 162(2) of the Constitution and the Employment and Labour Relations Court Act (first-instance trade dispute referred after conciliation under the Labour Relations Act)

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 Chemicals Workers Union v Roto Moulders (Cause E385 of 2020) [2022] KEELRC 1346 (KLR)", Case Analysis (2022). Cause No E385 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1346/eng@2022-07-14

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