Kenya Chemical Workers Union v Kenya Flexogravure Limited (Cause E021 of 2022) [2023] KEELRC 287 (KLR)
The bottom line
#A Kenyan court ruled that retrenching 12 workers overnight without notice or consultation was unfair, awarding each ten months' salary.
What this practically means
#Executive summary
#Key legal issues
#Validity of the CBA after two years
The registered CBA remained valid; the consent in Nakuru ELRC Cause No. 181 of 2013 capped a pre-registration agreement, but the registered CBA contains an extension clause and no evidence showed it lapsed
The court distinguished the CBA signed on 17 July 2013 from the one registered on 29 October 2013 following the consent order. The registered CBA contained a clause extending it unless amended by mutual agreement. There was no agreement after registration indicating lapse, and the Respondent's conduct in sending redundancy payments and the list of affected members to the Claimant confirmed the CBA's continued existence, defeating the locus challenge.
Fairness of the redundancy procedure
The redundancy was unfair because the Respondent issued no notice to the union or labour officer, gave no selection criteria, and conducted no consultation, contrary to section 40 of the Employment Act and ILO Convention C158 Articles 13 and 14
Section 40(1)(a) requires not less than one month's notice to the union and labour officer of the reasons and extent of intended redundancy, and section 40(1)(c) requires due regard to seniority, skill, ability and reliability in selection. The memo of 30 May 2022 took effect 31 May 2022, giving no notice and no criteria. The consultation and notification requirements of ILO Convention C158 were also not followed, making the terminations substantively and procedurally unfair.
Remedy for unfair redundancy
Each of the 12 grievants is entitled to compensation of ten months' salary, and the Respondent to pay costs
Having found the redundancy unfair and unjustified, the court exercised its discretion under section 49 of the Employment Act to award the maximum-equivalent compensation of ten months' salary per grievant, notwithstanding that some terminal dues including notice pay and severance at 30 days per year had already been paid, since those payments could not cure the procedural unfairness.
Legal principles established
#- An employer must comply with the notice and consultation requirements of section 40 of the Employment Act before declaring union members redundant; failure renders the redundancy unfair
- A registered CBA containing an extension clause remains valid unless reviewed or amended by mutual agreement of the parties
Court orders
#- 1.A finding that the redundancy of the Claimant's members was unfair and unjustified
- 2.Compensation of ten months' salary for each of the 12 grievants
- 3.The Respondent to pay costs of the claim
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and the Employment Act (claim for unfair redundancy under sections 40, 41, 43, 45 and 49 of the Employment Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Chemical Workers Union v Kenya Flexogravure Limited (Cause E021 of 2022) [2023] KEELRC 287 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/287/eng@2023-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.