Egerton University v Universities, Academic Staff Union & another (Employment and Labour Relations Petition E012 of 2022) [2023] KEELRC 619 (KLR)
The bottom line
#Kenya's employment court ruled Egerton University cannot block a lecturers' strike indefinitely and must show CBA implementation within 120 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the unilateral variation of salaries and employer pension contribution was lawful
It was an unlawful violation of employees' rights; variation of contractual terms requires consultation with the employee under section 10(5) of the Employment Act
The conciliator found the University unilaterally varied salaries from 100% to 60% by a circular of May 13, 2020 without prior engagement or consultation with UASU. The court applied section 10(5) of the Employment Act requiring consultation and written notice, and held that financial constraints do not excuse unilateral variation of wages.
Whether failure to remit third-party and statutory deductions is excused by lack of government funding
No; the employer's admission of deduction without remittance is an offence under section 19(4), (5) and (6) of the Employment Act
The Petitioner admitted making deductions from members' remuneration but not remitting them, attributing this to lack of government funding. The court held the statutory duty to remit within the specified period is absolute, and non-compliance is an offence punishable by fine or imprisonment, with the court able to order refund with the employer's own funds.
Whether the Petitioner's application to forestall the strike should be granted
It cannot stand; the employer must within 120 days demonstrate implementation of the CBA, failing which the union may strike after requisite notices
Balancing the Article 41 right to strike against the employer's position under Article 24, the court accepted the union's right to strike but gave the employer an opportunity to show it is working towards resolving the grievances, including demonstrating that payment arrears are factored into the budget cycle, or alternatively initiating a redundancy process.
Legal principles established
#- It is a violation of employees' rights for an employer to vary terms of engagement without consultation, per section 10(5) of the Employment Act
- An employer who deducts amounts from employees' remuneration and fails to remit them commits an offence under section 19(4)-(6) of the Employment Act; failure to remit cannot be excused by lack of funding
- The right to strike under Article 41(2)(d) is subject to limitation under Article 24 and must be balanced against the employer's rights, but an employer cannot hold back strike action indefinitely without demonstrating steps to implement the CBA
Court orders
#- 1.The application filed by the Petitioner seeking a raft of orders (including to forestall the strike) cannot stand and is refused
- 2.The Petitioner is directed that within 120 days, being the end and beginning of the budget cycle, demonstrate how they are implementing what is in the CBA between them and the Union
- 3.In default, the Respondent union is free to initiate a fresh strike action after giving the requisite notices
- 4.Costs in the cause
- Jurisdiction invoked
- Not expressly invoked; Petition under the Constitution and labour statutes referred to conciliation (Labour Relations Act conciliation process)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Egerton University v Universities, Academic Staff Union & another (Employment and Labour Relations Petition E012 of 2022) [2023] KEELRC 619 (KLR)", Case Analysis (2023). Petition dated October 17, 2022 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/619/eng@2023-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.