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ELRCPartially AllowedCause No. 1149 of 2014· [2018] KEELRC 48 (KLR)

Kenya Scientific Research International Technical and Institution Workers Union v Sana Industries Co. Limited [2018] KEELRC 48 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
20 December 2018
2,734 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that firing 94 workers for joining a union was unlawful, awarding them notice pay plus eight months' salary because the employer kept no employment records.

What this practically means

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Executive summary

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This first-instance judgment of the Industrial Court at Nairobi (Cause No. 1149 of 2014, consolidated with Cause No. 822 of 2013) was delivered by D. K. Njagi Marete, J, and signed/delivered by Maureen Onyango, Principal Judge, on 20th December 2018. The claimant union claimed that Vincent Ochwada and 93 others were unlawfully terminated on account of redundancy and, in substance, for joining the union after it obtained access orders on 23rd January 2013, contrary to sections 40, 41, 43 and 45 of the Employment Act, 2007, Article 41 of the Constitution and section 4 of the Labour Relations Act, 2007. It sought declarations, terminal benefits, 12 months' compensation under section 49(1)(c), reinstatement in the alternative, and costs, quantified at Kshs. 233,344,955. The respondent denied the claim, asserting a recognition agreement with the Kenya Union of Hair and Beauty Salon Workers Union, that some grievants remained in employment, others absconded or were never employees, and that the pleadings were frivolous and vexatious. The court framed four issues and, relying on sections 10 and 74 of the Employment Act, held that the employer's failure to keep employment records could not defeat the claim, finding termination proved and unlawful because it was occasioned by the unionization of the grievants. The claim was allowed in part: the court awarded one month's notice pay and eight months' salary as compensation (less than the 12 months sought), directed the Commissioner of Labour to compute the dues within 120 days pegged on gross salaries at termination, fixed mention for 18th April 2019 for a report, and awarded costs to the claimant.

Key legal issues

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01

Whether there was a termination of the employment of the 94 grievants by the respondent.

Holding

The court found as a fact that the grievants were terminated by the respondent, and rejected the respondent's defence resting on alleged abscondment, casual engagement and fictitious names.

Reasoning

The respondent relied on the claimant's alleged inability to identify employees and produce contracts of employment. The court held that sections 10 and 74 of the Employment Act, 2007 oblige the employer to keep and maintain employment records, and that the respondent could not benefit from its own failure to avail those records. The respondent could not expect to benefit from its mischief and misconduct, so a case of termination was established.

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02

Whether the termination was wrongful, unfair and unlawful.

Holding

The termination was unlawful: the grievants were terminated because of their recruitment by the claimant union, in the context of the respondent's reluctance to recognize trade union representation.

Reasoning

The court found the terminations were driven by the infighting between the claimant union and the respondent following the union's access orders of 23rd January 2013 and subsequent recruitment of members. The respondent's pretext of being tied to a rival union did not justify termination of unionized employees. Termination without reasons also contravened sections 40, 41, 43 and 45 of the Employment Act, 2007 and the constitutional right to fair labour practices under Article 41.

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03

Whether the claimant is entitled to the relief sought.

Holding

Yes, the claimant was entitled to relief, but the court tailored the award to notice pay and eight months' compensation, with dues computed by the Commissioner of Labour.

Reasoning

Having succeeded on both liability questions, the claimant became entitled to relief. The court awarded one month's salary in lieu of notice and eight months' salary as compensation for unlawful termination, directed the Commissioner of Labour to compute the dues within 120 days pegged on gross salaries at termination, and fixed mention for a report on the computation.

p. 5

Legal principles established

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  • An employer who fails to keep and maintain employment records as mandated by sections 10 and 74 of the Employment Act cannot escape liability for unproven terminations.
  • Termination of employees for joining a trade union of their choice violates Article 41 of the Constitution, section 4 of the Labour Relations Act and constitutes unlawful termination under the Employment Act.

Court orders

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  1. 1.One (1) month salary in lieu of notice for the grievants.
  2. 2.Eight (8) months salary as compensation for unlawful termination of employment.
  3. 3.The Commissioner of Labour, with the involvement of the parties, to compute the grievants' dues in (i) and (ii) above within 120 days of the judgment.
  4. 4.The computation to be pegged on the grievants' gross salaries at the time of termination.
  5. 5.Mention on 18th April, 2019 for a report on computation by the Commissioner of Labour.
  6. 6.The costs of the cause to be borne by the respondent.
Jurisdiction invoked
Original jurisdiction of the Industrial Court of Kenya under Cause No. 1149 of 2014 (no specific constitutional or statutory provision cited in the judgment)

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 Scientific Research International Technical and Institution Workers Union v Sana Industries Co. Limited [2018] KEELRC 48 (KLR)", Case Analysis (2018). Cause No. 1149 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/48/eng@2018-12-20

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