Kenya County Government Workers Union v Managing Director, Gatamathi Water & Sanitation Company & another (Petition E018 of 2023) [2024] KEELRC 2446 (KLR)
The bottom line
#Kenya's Employment Court ruled a water company unfairly dismissed an employee for union work, awarding him 12 months' salary as compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition is properly before the court notwithstanding an alternative statutory remedy under the Employment Act
The petition is properly before the court because the dismissal reasons disclosed violations of Bill of Rights; the Okumu doctrine of avoidance case is distinguishable.
The respondents invoked the doctrine of avoidance, contending the dispute should have been a statement of claim. The court found the grievant was targeted for being Branch Secretary, that all union officials had resigned, and that his woes arose from reporting the employer to the union head office. Unlike Okumu, the case involved constitutional violations, not purely contractual unfair termination. The petition also met the Anarita Karimi Njeru precision threshold.
Whether the dismissal of the grievant was unfair and unlawful
Yes - the reasons cited (union activities) were neither valid nor fair, and no fair procedure was followed; the dismissal is unfair under section 45 of the Employment Act.
The employer dismissed the grievant for allegedly sabotaging management and making unilateral decisions, but the court found these acts fell within his mandate as Branch Secretary - being the workers' spokesperson and communicating with the union head office. RW1 admitted no show cause letter issued, the General Secretary was not served, and the disciplinary procedure in Article 41 of the CBA and the HR Manual was not followed, contrary to section 41 of the Employment Act.
Whether the respondents violated the grievant's constitutional rights
Yes - dismissal for legitimate union activities violated Articles 41(2)(c) and 27 of the Constitution.
The court found as a fact that the grievant was dismissed for playing his legitimate role as Branch Secretary, whereas his fellow officials merely resigned and were not dismissed. Punishing him for exercising his right to participate in trade union activities amounted to negative discrimination contrary to Article 27 and curtailed fair labour practices under Article 41.
Appropriate remedies
Reinstatement declined; 12 months' gross salary compensation plus pending salaries, benefits and emoluments awarded under section 49 of the Employment Act.
Reinstatement was opposed on grounds of workplace friction and the petitioner did not prove practicability, given the toxic relationship between the grievant and management. Considering the grievant's nine years of permanent and pensionable service, absence of contributory misconduct, and judicial notice that jobs are scarce, the court awarded the 12 months' gross salary compensation sought, plus accrued dues, payable within 30 days less statutory deductions.
Legal principles established
#- An employer who dismisses an employee for legitimate union activities such as communicating with the union head office and agitating for implementation of the CBA has no valid and fair reason and the dismissal is unfair.
- A petition in an employment dispute is properly before the court where the circumstances of the dismissal disclose violations of rights in the Bill of Rights, distinguishing the doctrine of avoidance.
- A constitutional petition in an employment matter must satisfy the Anarita Karimi Njeru threshold of precision.
Court orders
#- 1.Declaration that the respondents violated the grievant's rights under Articles 27 and 41 of the Constitution (equality before the law and fair labour practices)
- 2.Finding that the dismissal of the grievant on 21st November 2023 was unfair and unlawful under section 45 of the Employment Act
- 3.The grievant is entitled to remedy under section 49 of the Employment Act, 2007
- 4.Award of 12 months gross salary as compensation for unfair dismissal
- 5.The respondents ordered to pay all pending salaries, benefits and emoluments due and owing to the grievant under the terminated contract
- 6.Respondents to compute and pay the damages awarded within 30 days less statutory deductions
- 7.Petitioner awarded costs of the suit plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Articles 27, 28, 41(1) and 47 of the Constitution of Kenya, 2010 (petition for violation of fundamental rights and freedoms)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya County Government Workers Union v Managing Director, Gatamathi Water & Sanitation Company & another (Petition E018 of 2023) [2024] KEELRC 2446 (KLR)", Case Analysis (2024). Petition dated 24th November 2023 (ELRC, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2446/eng@2024-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.