Kenya Engineering Workers Union v Consulting & another (Cause E019 of 2022) [2023] KEELRC 2548 (KLR)
The bottom line
#Kenya's Employment Court ruled that dismissing workers soon after they joined a union, without notice or reasons, was unfair and the direct employer must pay compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the grievants were unfairly terminated
The grievants were unfairly dismissed by the 1st Respondent, whether characterised as redundancy or desertion; neither process complied with the law.
The 1st Respondent never communicated the shortage of raw materials or COVID-19 roster to the grievants, gave no reasons for termination and issued no redundancy notice under Section 40 of the Employment Act. Dismissal followed hard on the grievants joining the union, evidencing anti-union motive. No efforts were made to reach the alleged deserters. The direct employer bore responsibility despite the outsourcing.
Whether reinstatement should issue
Reinstatement refused; it was not practicable as the 1st Respondent no longer controlled work with the 2nd Respondent.
Reinstatement under Section 49(3) of the Employment Act and Section 12(3)(vii) of the ELRC Act requires exceptional circumstances and practicability. Here there was no evidence the 2nd Respondent had work for the grievants or that the 1st Respondent held a valid outsourcing contract, so reinstatement could not be effected meaningfully.
Severance pay entitlement
Grievants awarded severance pay since the circumstances of dismissal pointed to redundancy, not desertion.
Shortage of raw materials and COVID-19 are grounds justifying redundancy, which is termination without employee fault. NSSF statements showed service from 2015, contradicting the 1st Respondent's claim of barely three months' service, supporting severance at 15 days per completed year as tabulated.
House allowances and accrued leave beyond one year
Such claims are continuing injuries limited by Section 90 to one year.
Although the employer bore the record-keeping burden and failed to show house allowances were paid or salary consolidated, house allowance and accrued leave accrue monthly, amounting to continuing injury under Section 90, so recovery is confined to one year before filing.
Legal principles established
#- An employer alleging desertion must demonstrate efforts made to reach out to the employee; it is not enough to simply allege desertion.
- Where an employer outsources employees, responsibility for a lawful separation remains with the direct employer.
- Dismissal shortly after joining a trade union, absent a lawful process, confirms suspicion of anti-union victimisation and violates Articles 36, 41 and 47 of the Constitution.
Court orders
#- 1.A declaration that the grievants' dismissal is unfair
- 2.Payment of one month's salary in lieu of notice to each grievant
- 3.Award of severance pay (15 days per completed year of service, as tabulated in the memorandum of claim)
- 4.One-month salary as compensation for the unfair dismissal to each grievant
- 5.Payment of one-year house allowances and accrued leave
- 6.Costs of the suit and interest until payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act, Section 12(3)(vii), and the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Engineering Workers Union v Consulting & another (Cause E019 of 2022) [2023] KEELRC 2548 (KLR)", Case Analysis (2023). Cause No. E019 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2548/eng@2023-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.