Transport & Allied Workers Union v Societe Internationale De Telecommunications Aeronatiques (Cause 109 of 2010) [2011] KEIC 32 (KLR)
The bottom line
#Kenya's Industrial Court ruled a manager's redundancy was procedurally unfair because his employer skipped proper notification and consultation, awarding three months' salary.
What this practically means
#Executive summary
#Key legal issues
#Unionisability of a Regional Manager
The grievant, as Regional Manager SITA East Africa, was not unionisable
Managers perform interpersonal, decisional and informational roles, represent capital, and have negotiating leverage unionisable workers lack. The Industrial Relations Charter excludes persons in charge of operations with decisional authority and confidential responsibilities. The practice in France did not alter the Kenyan distinction.
Applicability of the CBA to the grievant
The CBA did not apply as a collectively negotiated document but became the applicable contract upon the parties' adoption in the 2009 redundancy negotiations
The parties' exchange of letters in the redundancy negotiations adopted the CBA terms. Parties are free to negotiate and adopt terms so long as they meet the minimum threshold of the Employment Act 2007. The Court looks at the CBA as the contract adopted by the parties, not because the grievant was a union member.
Capacity of the union to act for the grievant
Though the grievant was not unionisable and could not be collectively represented, the union's individual representation of him in negotiations and litigation was permissible
Trade unions have a broader right to represent individuals beyond advocating collective rights. Once the CBA was adopted as the individual contract, engaging one of its authors was logical and suited the parties, within permissible industrial relations innovations.
Procedural fairness of the redundancy
The redundancy was procedurally flawed and the termination unfair under sections 43 and 45 of the Employment Act 2007
There was no formal notification of the intended redundancy to the employee, union and labour office; no evidence of consideration of alternative employment beyond a bare statement; and communications conveyed a decision rather than a proposal. Consultation requires engagement with an open mind and involves the entirety of the redundancy process.
Tax exemption, gratuity and service award
Claims for tax exemption, gratuity and service award failed as they are not demandable items
Tax payment is a personal statutory obligation of the employee under the Income Tax Act; a contract exempting a taxpayer would be illegal. Gratuity and tax assumption are discretionary good-faith gestures, and clause 30 made the Service Award discretionary. The tax had been remitted to KRA and the Court could not ask for more.
Legal principles established
#- Regional Managers and management staff are not unionisable under the Industrial Relations Charter framework in Kenya
- Employers must satisfy the Court that there was a genuine redundancy situation, notification of employee, union and labour office, consideration of alternative employment and consultation at every turn
- Consultation is distinct from negotiation of a separation package and must involve the entirety of the redundancy process, conducted with an open mind before a decision is made
- A CBA not applying to a non-unionisable employee as a collectively negotiated instrument may become the applicable contract of employment upon the parties' adoption in their negotiations
Court orders
#- 1.A declaration that the grievant's termination of employment on account of redundancy was procedurally flawed and therefore unfair
- 2.The respondent to pay the grievant 3 months' gross salary at the rate applicable on 30th November 2009 in compensation for unfair termination
- 3.The Award to be implemented in full within 45 days of its delivery
- 4.Each party to cater for their own costs
- Jurisdiction invoked
- Jurisdiction as the Industrial Court established to resolve trade disputes; dispute reported to the Minister for Labour under the Labour Relations Act and conciliation having failed, the matter came before the Court as a memorandum of claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Transport & Allied Workers Union v Societe Internationale De Telecommunications Aeronatiques (Cause 109 of 2010) [2011] KEIC 32 (KLR)", Case Analysis (2011). Cause 109 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2011/32/eng@2011-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.