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ELRCDismissedCause No. 276 of 2015

Kenya Plantation & Agricultural Workers Union v Kongoni River Farm Limited [2020] KEELRC 1055 (KLR)

Employment and Labour Relations Court of Kenya
21 May 2020
3,381 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that union shop stewards can be lawfully dismissed for misconduct, just like any other employee.

What this practically means

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Executive summary

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The Kenya Plantation & Agricultural Workers Union, a registered trade union with a recognition agreement with Kongoni River Farm Limited, claimed that the grievant, Boniface Shikuyu Shikule, a general worker employed in 2007 and serving as chief shop steward, was victimised and unlawfully, wrongfully and unfairly dismissed. The grievant had sought meetings with management to address employees' concerns, including restrictions on salary advances and the role of the Gender Committee in disciplinary proceedings. After a workers' meeting on 8th May, 2015, seven Gender Committee members complained that the grievant had used abusive and demeaning language towards them. He was issued a show cause notice on 18th May, 2015, which he answered, and invited to a disciplinary hearing on 20th May, 2015, which he did not attend, instead demanding that the entire workforce attend as his witnesses. He was summarily dismissed on 21st May, 2015. The union sought reinstatement or, in the alternative, terminal dues including days worked, gratuity, leave, notice pay and compensation. The respondent maintained the dismissal was for gross misconduct after a fair process. The court held that section 44(4)(d) and (e) of the Employment Act justified summary dismissal for abusive language and insubordination; that a shop steward remains an employee who may be disciplined for just and reasonable cause; and that the grievant squandered his chance to be heard. The claim was dismissed with each party bearing its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the grievant, Boniface Shikuyu Shikule, was victimised for his role as workers' representative (chief shop steward)
  2. 2.Whether the summary dismissal of the grievant on 21st May, 2015 was wrongful, unlawful and unfair
  3. 3.Whether the grievant was accorded a fair hearing before dismissal
  4. 4.Whether reinstatement, compensation or terminal dues are payable

Key legal issues

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01

Whether the grievant's summary dismissal for abusive language towards the gender committee and failure to attend disciplinary hearing was justified

Holding

The dismissal was justified and lawful under section 44(4)(d) and (e) of the Employment Act, 2007

Reasoning

Seven gender committee members complained that the grievant used abusive and demeaning language at the workers meeting of 8th May, 2015. He was issued a show cause letter, responded, and was invited to a disciplinary hearing but failed to attend, instead demanding that the entire workforce attend as his witnesses. Section 44(4)(d) and (e) of the Employment Act permits summary dismissal for abusive language and refusal to obey lawful commands. Having squandered the chance to be heard, he cannot claim his right to a hearing was violated.

p. 4
02

Whether the grievant was victimised for his role as chief shop steward

Holding

No victimisation was established; a shop steward remains an employee bound by lawful disciplinary procedures

Reasoning

Relying on Aggrey Murumba, National Union of Mineworkers v Black Mountain Mining and Mondi Paper Co Ltd v PPWAWU, the court held that union officials may be disciplined for just and reasonable cause and that shop steward status is no licence for defiance or insubordination. The grievant's letters to management bordered on insubordination, and the charges against him related to his personal conduct, not his collective representation role.

p. 5

Legal principles established

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  • An employer has the right to discipline union officials for just and reasonable cause; shop steward immunity does not shield misconduct
  • An employee who squanders internal grievance handling and disciplinary mechanisms cannot claim unfair treatment
  • Summary dismissal is permissible under section 44(4)(d) and (e) of the Employment Act for abusive language and refusal to obey lawful instructions

Court orders

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  1. 1.The claim is dismissed
  2. 2.Each party shall bear own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2) of the Constitution establishing the Employment and Labour Relations Court (employment dispute under the Labour Relations Act, 2007 and Employment Act, 2007)

Relief refused

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Reinstatement of the grievant without loss of benefits

Summary dismissal was found justified and lawful, so reinstatement was not available

p. 5

Compensation for unfair termination

Not available where dismissal is justified

p. 5

Gratuity

The right to gratuity was lost upon summary dismissal

p. 5

Notice pay and terminal dues beyond clearance items

Grievant was only entitled to clearance-based dues: days worked, overtime, bonus, leave days and certificate of service

p. 5

Costs

Each party shall bear own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The sanction of summary dismissal is found justified and lawful.
p. 5Justification of summary dismissal
Accordingly, the claim is hereby dismissed. Each party shall bear own costs.
p. 5Final orders - dismissal and costs
an employee who squanders the internal grievance handling mechanisms provided for by the employer cannot claim to have been unfairly treated
p. 4Squandering internal disciplinary mechanisms
Notwithstanding the position to which he has been elected, a shop steward remains an employee, from whom his employer is entitled to expect conduct that is appropriate to that relationship.
p. 5Limits of shop steward immunity
An employee who is a union official has a difficult balancing act to carry. He must robustly play his role as a union official for the betterment of the terms and conditions of service as agreed with the employer while alive to the fact that as an employee he must not be insubordinate to the employer.
p. 5Balancing union representation with employee duties

Issues in the judgment

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minor

Judgment inconsistently refers to the grievant as 'claimant' in parts (e.g. 'the claimant was issued with letter of summary dismissal'), conflating the union claimant with the grievant

minor

Internal date inconsistency: defence dated letter '20th April, 2015' in one passage but judgment elsewhere records 18th November, 2014 meeting and '22nd number, 2014' show cause, an apparent typographical error

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 Plantation & Agricultural Workers Union v Kongoni River Farm Limited [2020] KEELRC 1055 (KLR)", Case Analysis (2020). Cause No. 276 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1055/eng@2020-05-21

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