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ELRCPartially AllowedNot stated in judgment (Amended Statement of Claim dated 19th February 2020)· [2024] KEELRC 360 (KLR)

Moriasi & 6 others v Pozzolana Stones Limited (Employment and Labour Relations Cause 961 of 2016) [2024] KEELRC 360 (KLR)

Employment and Labour Relations Court
22 February 2024
AMAnna Ngibuini Mwaure
4,178 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled seven quarry workers were unfairly terminated and underpaid, awarding them over Kshs 1.4 million plus three months' salary each.

What this practically means

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Executive summary

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Seven claimants sued their employer alleging that although a Collective Bargaining Agreement executed on 5th June 2013 and registered on 29th January 2014 had revised their terms, the respondent underpaid them in 2013 and 2014, then in December 2014 and January 2015 forced them to sign clearance certificates on pain of losing employment, and later issued new contracts with inferior terms. The respondent denied the claims, asserting the claimants were paid all dues, were not union members and thus not covered by the CBA, and counterclaimed for notice pay and damages of Kshs 1,000,000 on the basis that the claimants absconded duty and left without notice. The court framed three issues: unlawful or unfair termination, union membership, and entitlement to reliefs. Applying Sections 45 and 47(5) of the Employment Act, it found the respondent failed to prove abscondment, producing no attendance records, warning letters or disciplinary process, and held the terminations unlawful and unfair. On union membership, the respondent produced no contrary evidence, and the Union's representation of the claimants made non-membership illogical; the court therefore found the CBA applied to them. The claimants were awarded Kshs 1,428,223/- in underpayment for 2013 and 2014 and three months' salary each for unlawful termination, with costs and interest at court rates from the date of judgment. The respondent's counterclaim was not awarded. Judgment was delivered virtually on 22nd February 2024 by Anna Ngibuini Mwaure, J.

Key legal issues

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01

Whether the Claimants were unlawfully/unfairly terminated

Holding

The employment was terminated unlawfully and unfairly; the Respondent failed to prove abscondment or any other valid reason, and did not follow Section 41 procedure

Reasoning

The Respondent alleged the Claimants absconded after refusing to sign new contracts and clearance certificates, but produced no attendance registers, warning letters, NTSC notices or disciplinary hearing records. Under Sections 45 and 47(5) of the Employment Act the employer bears the burden of justifying termination. Abscondment, even if proved, is misconduct requiring a Section 41 hearing. No such process was undertaken, so the Claimants' employment was unfairly and unlawfully terminated.

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02

Whether the Claimants were members of the union and thus covered by the CBA

Holding

The court found the Claimants were members of the union and the CBA terms applied to them

Reasoning

The Respondent, though adamant that the Claimants were not union members, produced no list of unionised employees or contrary evidence. The Union had represented and corresponded on behalf of the Claimants, which would be illogical were they not members. Applying Section 107 of the Evidence Act on burden of proof, the court found union membership established and the CBA applicable.

p. 9
03

Whether the Claimants were entitled to underpayment damages for 2013 and 2014 and compensation for unlawful termination

Holding

Yes - underpayment of Kshs 1,428,223/- for 2013 and 2014 plus three months' salary each as compensation for unlawful termination

Reasoning

Having found the CBA applied to the Claimants, the court awarded the underpayment claimed for 2013 and 2014. It further awarded each of the seven Claimants three months' salary equivalent for unlawful termination, computed on the enhanced salary at termination, together with costs and interest.

p. 9

Legal principles established

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  • For a termination to be fair, the employer must prove both valid and fair reason and adherence to fair procedure under Section 45 of the Employment Act
  • An employer alleging that employees absconded duty must adduce evidence and follow the disciplinary process under Section 41 of the Employment Act; failing which termination is unfair
  • A party who asserts a fact must prove it, per Section 107 of the Evidence Act; a respondent alleging non-membership of a union bears the burden of proving it

Court orders

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  1. 1.Declaration that the Claimants' employment was terminated unlawfully and unfairly
  2. 2.Finding that the Claimants were members of the union and the CBA terms applied to them
  3. 3.Payment of underpayment for the years 2013 and 2014 totalling Kshs 1,428,223/- to the seven Claimants
  4. 4.Award of 3 months' salary equivalent for unlawful termination to each of the 7 Claimants as per their enhanced salary at time of termination
  5. 5.Costs of the suit awarded to the Claimants
  6. 6.Interest at court rates from the date of judgment till full payment
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act, 2007 (Article 162(2)(a) jurisdiction not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Moriasi & 6 others v Pozzolana Stones Limited (Employment and Labour Relations Cause 961 of 2016) [2024] KEELRC 360 (KLR)", Case Analysis (2024). Not stated in judgment (Amended Statement of Claim dated 19th February 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/360/eng@2024-02-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.