Kenya Union of Commercial Food Allied Workers v Morison Engineering Limited (Employment and Labour Relations Cause 1454 of 2017) [2024] KEELRC 382 (KLR)
The bottom line
#A Kenyan court ruled fixed-term contracts that simply expired weren't unfair dismissals, but the employer still had to pay unpaid salary, leave dues, and underpayments.
What this practically means
#Executive summary
#Key legal issues
#Nature of the grievants' contracts of employment
Each Grievant was serving under a one-year fixed-term contract expiring on 31st August 2016
Both grievants were engaged on written one-year contracts dated 1st September 2014 and extended for a further year by letters dated 1st September 2015, ending 31st August 2016. Regardless of the label applied, the true relationship was one of successive fixed-term contracts with clear commencement and end dates.
Whether the grievants were terminated unfairly on account of union membership
No; the contracts terminated by effluxion of time and allegations of retaliatory, union-motivated dismissal were unproven
While Article 33 and 41 of the Constitution, section 4 of the Labour Relations Act and section 46 of the Employment Act prohibit dismissal for union membership, the Claimant adduced only bare allegations. The contracts had clear commencement and end dates and terminated automatically on those dates.
Applicability of the Collective Bargaining Agreement despite retrospective execution
The CBA applied from 1st January 2016 to the date of separation; underpayments calculated accordingly
The Respondent never pleaded or counterclaimed for nullification of the CBA on grounds of retrospective effect. Courts do not re-write contracts but enforce the parties' agreed intentions. Both grievants, as service technicians in Grade D, were entitled to the negotiated salary of KShs.19,095.20.
Salary for August 2016
Each Grievant awarded KShs.19,075.10 as unpaid salary for August 2016
The Respondent alleged payment by bank transfer but the alleged transfer document was absent from its bundle of documents. In the absence of proof of payment, the court concluded the grievants were not paid for August 2016.
Accrued but unutilized leave days
Each Grievant awarded KShs.33,063.70 for leave accrued in 2015 and 2016 only
The Respondent's pleadings and evidence on leave were general and lacked specificity, and its witness did not explain how cheque figures were computed. The employer bears the burden of proving leave was taken or compensated. The 2nd Grievant's claim for 11 years was limited to the three-year limitation period.
Legal principles established
#- Courts look past the label the parties place on an employment relationship to the true nature of that relationship
- Termination on account of trade union membership or activity constitutes automatically unfair dismissal
- A CBA given retrospective effect by late execution is not thereby invalid, and courts do not re-write contracts but give effect to the parties' intention
- Gratuity is payable only where provided for by contract or statute
- The burden of proving that annual leave was taken or compensated lies on the employer
Court orders
#- 1.Judgment entered in favour of the Grievants in respect of earned but unutilized leave days: KShs.33,063.70 for each Grievant
- 2.Judgment in respect of salary underpayment: KShs.16,760.00 for the 1st Grievant and KShs.80,760.00 for the 2nd Grievant
- 3.Judgment in respect of unpaid salary for August 2016: KShs.19,075.10 for each Grievant
- 4.The Respondent to issue the Grievants with a Certificate of Service within 30 days of the Judgment
- 5.Interest on the awarded amounts
- 6.Costs of the suit to the Claimant
- Jurisdiction invoked
- Articles 162(2) and 165(5)(b) of the Constitution of Kenya, 2010 (Labour Relations Act, 2007, Section 69 referral certificate)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial Food Allied Workers v Morison Engineering Limited (Employment and Labour Relations Cause 1454 of 2017) [2024] KEELRC 382 (KLR)", Case Analysis (2024). Cause E071 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/382/eng@2024-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.