Kenya Union of Commercial Food and Allied Workers v Sameer Agricultural and Livestock Kenya Ltd (Cause E020 of 2020) [2023] KEELRC 1021 (KLR)
The bottom line
#A Kenyan court ruled an employer cannot defend a dismissal without evidence of a fair disciplinary hearing, and unions can sue for members even without a recognition agreement.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of a trade union without a recognition agreement
The claimant union has locus to sue on behalf of its member notwithstanding the absence of a recognition agreement or CBA.
The court held that Article 41 of the Constitution grants every person the right to join and participate in the affairs of a trade union, and that this right is not limited by any recognition agreement. The grievant was an active member of the union and therefore the union could represent him regardless of the respondent's objections under section 54 of the Labour Relations Act.
Procedural fairness of the termination
The termination was unfair because the court was left without clarity on what transpired at the disciplinary hearing; no minutes were produced and the respondent did not attend conciliation.
The court noted the grievant's evidence that he attended the show cause hearing, declined to write a statement he alleged he was forced to write, and was issued a termination letter the same day. The respondent, as custodian of the disciplinary process, failed to produce the minutes or other evidence of the hearing, and also failed to attend conciliation. In the absence of clarity, the court found the grievant had established his case.
Justification of the reason for termination
The respondent failed to prove the alleged assault and gross misconduct; the grievant was awarded compensation for unlawful termination.
Although the respondent alleged the grievant assaulted his supervisor and reported the matter to police, no evidence was produced to support this. The court found that allegations of payment to the grievant were also unsupported by evidence. Consequently the reasons for termination were not substantiated and 8 months' salary compensation under section 49 of the Employment Act was awarded.
Legal principles established
#- An employee's constitutional right to join a trade union under Article 41 and be represented by it is not conditional on the existence of a recognition agreement with the employer.
- Where an employer fails to produce evidence of the disciplinary hearing (such as minutes) and declines to attend conciliation, it risks a finding that the employee has proved unfair termination.
Court orders
#- 1.One month salary in lieu of notice Kshs 30,000
- 2.Salary for August 2018 Kshs 30,000
- 3.15 days worked in September 2018 Kshs 15,000
- 4.Pro-rata leave of 7 months Kshs 12,250
- 5.8 months' salary as compensation for unlawful termination Kshs 240,000 (total award Kshs 316,225)
- 6.Issuance of a certificate of service
- 7.Respondents to pay costs of the suit plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Original employment and labour relations jurisdiction under Article 162(2)/165 of the Constitution; court exercised jurisdiction after referral of an unresolved trade dispute by a conciliator under the Labour Relations Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial Food and Allied Workers v Sameer Agricultural and Livestock Kenya Ltd (Cause E020 of 2020) [2023] KEELRC 1021 (KLR)", Case Analysis (2023). Not stated in the judgment (Memorandum of claim dated March 3, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1021/eng@2023-05-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.