kenya Union of Domestic, Hotels, Education Institutions and Hospital Workers v Board of Management Hospital Hill High School (Cause E802 of 2021) [2024] KEELRC 553 (KLR)
The bottom line
#A Kenyan court confirmed that firing an employee for a valid reason still counts as unfair if you never give them a hearing after finishing investigations.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of a trade union without a recognition agreement
The Claimant Union has locus standi despite the absence of a recognition agreement and unproven membership claims
Section 54 of the Labour Relations Act provides that recognition is only for purposes of collective bargaining. Union membership is not pegged on a recognition agreement, and pegging it so would curtail the Article 41(2)(c) constitutional right to join a trade union. Further, Articles 22(2) and 258(2)(d) broadened locus standi, fortified by Modern Soap Factory and Mumo Matemu.
Substantive fairness of termination
The Respondent proved valid and fair reasons for terminating both grievants on grounds of negligence
The investigative audit report indicted the 1st grievant (bursar) for failure to update books of accounts and trial balances, and the 2nd grievant for failure to maintain stores ledgers. Letters from RW1 showed repeated reminders to the 1st grievant, who offered no proof of response. The lapses fell squarely within their duties, establishing valid and fair reasons under Section 45(2).
Procedural fairness of termination
Termination was procedurally unfair because the grievants were never heard after the investigative audit on which the termination was based
The 11th December 2017 Board hearing was inconclusive as the Board resolved to await an audit report. No further disciplinary hearing was convened after the February 2018 audit; the decision to terminate was made at the 18th October 2018 Board meeting without inviting the grievants. Conducting a hearing before investigations would be putting the cart before the horse; a fresh hearing was required under Section 41.
Legal principles established
#- A trade union's standing to represent its members in court does not depend on a recognition agreement, which is only for collective bargaining
- An employer must accord an employee a fresh hearing after investigations conclude where the initial disciplinary hearing was inconclusive
Court orders
#- 1.Judgment entered against the Respondent
- 2.1st grievant awarded compensatory damages of Kshs 50,760.00 equivalent to three months' gross salary with interest at court rates from date of judgment until payment in full
- 3.2nd grievant awarded compensatory damages of Kshs 50,760.00 equivalent to three months' gross salary with interest at court rates from date of judgment until payment in full
- 4.No orders as to costs
- 5.Grievants at liberty to collect their final dues
- Jurisdiction invoked
- First-instance jurisdiction under the Employment and Labour Relations Court's statutory mandate (Employment Act and Labour Relations Act invoked); no specific constitutional article invoked as basis of jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "kenya Union of Domestic, Hotels, Education Institutions and Hospital Workers v Board of Management Hospital Hill High School (Cause E802 of 2021) [2024] KEELRC 553 (KLR)", Case Analysis (2024). Cause No E802 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/553/eng@2024-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.