Kenya Building, Construction, Timber and Furniture Industries Employees Union v Timsales Limited (Cause E029, E030 & E031 of 2021 (Consolidated)) [2023] KEELRC 8 (KLR)
The bottom line
#Kenya's Employment Court ruled Timsales unfairly dismissed hundreds of workers, awarding them terminal dues and six months' pay because proper disciplinary procedures weren't followed.
What this practically means
#Executive summary
#Key legal issues
#Valid reasons for termination
Valid reasons were not established for grievants in the 2nd and 3rd shifts (Causes E030 and E031) who were found to have been locked out; the reason of participation in an unprotected strike was res judicata only for those who actually participated
The dismissal letters cited participation in an illegal strike and destruction of property. The court, relying on the prior ruling in Nairobi ELRC Cause 1282 of 2018, held the strike issue res judicata. However, evidence showed 2nd and 3rd shift workers arrived to find gates manned by police and were turned away, so they could not have participated. Only 2 of about 400 grievants were charged with property destruction. Section 43 requires the employer to prove reasons per employee.
Fair disciplinary process
The grievants were not accorded a fair hearing; show cause letters and hearing invitations were not proved to have been served on the majority
RW1 admitted some show cause letters had no addresses, and no exhibited letter bore an address. Most grievants denied being served and learnt of dismissal later. Service by post was not proved. Section 41 requires notification and hearing before termination; without proof of service the grievants were condemned unheard, rendering termination unfair under Section 45(2).
Res judicata on the lockout/unprotected strike question
The court declined to revisit whether the workers participated in an unprotected strike, that issue having been determined in Nairobi ELRC Cause No. 1282 of 2018
The Respondent argued the prior ruling conclusively found the grievants engaged in an unprotected strike. The court accepted that the question of whether the workers participated in an unprotected strike had been determined by Hon. Maureen Onyango on June 21, 2019 and could not be reopened, but this did not extinguish the need for the respondent to prove each grievant's individual participation and serve individual notices.
Remedies
Reinstatement not viable (3-year limit expired); grievants entitled to terminal dues, 6 months' compensation and certificates of service
Reinstatement was time-barred under Section 12 of the ELRC Act. Despite the unfairness of the process, compensation was capped at six months' gross salary, reflecting the grievants' own conduct in the strike (for 1st shift workers) and the passage of time. Terminal dues including notice pay, leave pay, gratuity under Clause 19 of the CBA and unpaid days were awarded, with certificates of service, costs and interest.
Legal principles established
#- An employer must prove valid reasons for termination of each employee; where grievants were not present at the workplace, the reason of participation in a strike is not established
- Dismissal without proof of service of a show cause letter and invitation to a disciplinary hearing amounts to condemning an employee unheard and is procedurally unfair
- An employer is entitled to summarily dismiss an employee who engages in an illegal strike and absconds duty
Court orders
#- 1.Payment of terminal dues to each grievant: notice pay, leave pay, gratuity as per Clause 19 of the CBA, and days worked and not paid for
- 2.Compensation equivalent to six months' salary for each grievant for dismissal without due process
- 3.Issuance of a certificate of service to each grievant
- 4.Respondent to pay costs of the suit plus interest at court rates with effect from the date of judgment
- 5.Parties, with the help of the County Labour Office Nakuru, to compute the exact number of grievants and submit the figures to court for adoption as part of the judgment
- Jurisdiction invoked
- First-instance employment and labour relations jurisdiction of the ELRC (ELRC Act, Section 12)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Building, Construction, Timber and Furniture Industries Employees Union v Timsales Limited (Cause E029, E030 & E031 of 2021 (Consolidated)) [2023] KEELRC 8 (KLR)", Case Analysis (2023). ELRC Cause Number E029 of 2021 (Lead File; consolidated with E030 of 2021 and E031 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/8/eng@2023-01-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.