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ELRCDismissedELRC Cause (Malindi) – unnamed in judgment· [2024] KEELRC 1478 (KLR)

Kenya Engineering Workers Union v Kenya General Industries Limited (Cause E021 of 2022) [2024] KEELRC 1478 (KLR)

Employment and Labour Relations Court
16 May 2024
MMM. Mbarũ
2,080 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a union's claim because the CBA was never registered and the worker was fairly dismissed for misconduct.

What this practically means

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Executive summary

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The claimant trade union, on behalf of grievant Felix Otieno Okoth, claimed unfair termination of employment, notice pay, 12 months' compensation and gratuity contrary to a CBA between the union and the respondent manufacturing company. The grievant, a crane operator, said he worked from 2015, was issued successive three-month fixed-term contracts, and was summarily dismissed on 7 July 2020 for union activities after the union demanded better wages. The respondent admitted a Recognition Agreement but contended the CBA was only registered on 13 April 2022, after the grievant's employment ended; that he was on a fixed-term contract expiring 18 August 2020; and that he was lawfully summarily dismissed on 7 July 2020 for gross misconduct, namely breach of workplace health and safety regulations, after prior warnings copied to the shop floor union representative. The court held that under Section 59(5) of the Labour Relations Act a collective agreement becomes enforceable only upon registration, and the claimant failed to prove registration; the grievant's employment ended before the CBA was executed, so all claims founded on it failed. The court further held, applying the Court of Appeal's decision in Transparency International Kenya v Teresa Carlo Omondi, that issuing fixed-term contracts is lawful and cannot be negated by a CBA. On the evidence, the summary dismissal was for gross misconduct for good cause, and the unionization/victimization claim had no basis. Notice pay and compensation were therefore not due, and gratuity failed with the unregistered CBA. Observing that the grievant's union representative was ill-prepared and had frustrated the hearing, the court declined costs to the claimant and, invoking Seth Panyako, underscored the union's duty of faithful, diligent representation. The claim was dismissed with costs to the respondent.

Key legal issues

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01

Enforceability of an unregistered CBA

Holding

The CBA dated 13 April 2022 could not be enforced as its registration was not proved; the grievant's employment ended before it was executed

Reasoning

Section 59(5) of the LRA provides that a collective agreement becomes enforceable and shall be implemented upon registration by the Industrial Court. Since the claimant did not prove registration, and the grievant's employment ended on 7 July 2020, well before the CBA was executed, any claim founded on the CBA (including gratuity) fails.

p. 4
02

Lawfulness of fixed-term contracts notwithstanding a CBA

Holding

Issuing term contracts is lawful under Section 10(3) of the Employment Act and cannot be negated by a CBA

Reasoning

The court held that an employer has the prerogative to organize its employees and issue term contracts, which is permitted under Section 10(3) of the Employment Act. A fixed-term contract is lawful and valid, and its issuance to a category of employees is not rendered unlawful by the existence of a CBA, as held by the Court of Appeal.

p. 4
03

Fairness of the termination

Holding

The summary dismissal for gross misconduct (breach of safety and health regulations) was for good cause; the unionization claim had no basis

Reasoning

The grievant admitted receiving a notice of summary dismissal for workplace misconduct and that warnings were issued and copied to the shop floor union representative. The claimant did not challenge the breach of safety regulations, so its assertion of victimization for unionization was at variance with the evidence and could not justify a claim of wrongful or unfair termination.

p. 4

Legal principles established

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  • A collective agreement becomes enforceable only upon registration by the Industrial Court, per Section 59(5) of the LRA
  • An employer may lawfully issue fixed-term contracts even where a CBA regulates terms and conditions of employment

Court orders

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  1. 1.The claim is found without merit and is dismissed with costs to the respondent
  2. 2.The claimant is ordered to meet the costs due to the respondent

Authorities

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Legislation

  • Labour Relations Act, 2007Sections 57, 59(5), 62
  • Employment Act, 2007Sections 10(3), 15 (Employment and Labour Relations Court Act), 37, 43, 47(5)
  • Employment and Labour Relations Court ActSection 15
  • Constitution of Kenya, 2010Articles 36 and 41

Cases cited (6)

  • Kenya Leather Workers Union v Bata Shoes Co
    (K) Cause No. 245 of 2014
  • Protus Wanjala Mutie v Ango African Properties t/a Jambo Mutara Lodge Laikipia
    [2021] eKLR
  • Ali Omar Mwanyuni v Kwale International Sugar Co. Ltd
  • Presbyterian Church of East Africa & Another v Ruth Gathoni Ngotho
    [2017] eKLR
  • Transparency International Kenya v Teresa Carlo Omondi
    [2023] eKLR, Civil Appeal No. 18 of 2018
  • Seth Panyako v Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act; Labour Relations Act, 2007

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, "Kenya Engineering Workers Union v Kenya General Industries Limited (Cause E021 of 2022) [2024] KEELRC 1478 (KLR)", Case Analysis (2024). ELRC Cause (Malindi) – unnamed in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1478/eng@2024-05-16

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