Kenya Building Construction Timber and Furniture Industries Employees Union v Victory Construction Ltd (Cause 1648 of 2015) [2023] KEELRC 1580 (KLR)
The bottom line
#Kenya's Employment Court ruled an employer cannot fire a worker for absconding without first trying to trace and hear them, awarding the guard Ksh. 135,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the Trade Union Claimant required a recognition agreement to represent the Grievant
The Claimant has locus standi; recognition agreements are only required for collective bargaining, not for court representation, and membership was proved by check-off forms and dues payments
Section 54 of the Labour Relations Act makes recognition agreements a prerequisite only for collective bargaining. Section 22 of the ELRC Act recognises a union's right to represent members in court without such condition. The Court of Appeal settled the matter in Modern Soap Factory v Kenya Shoe and Leather Workers Union. Check-off forms and testimony of dues payments proved membership.
Whether the termination was lawful
Termination was procedurally flawed as the Respondent afforded no hearing despite alleging absconding, and no notice to show cause was proved
Sections 41, 43, 44 and 45 of the Employment Act require both valid reason and due process. Section 41(2) mandates a hearing for gross misconduct. Alleged absconding does not excuse the duty; the employer must show it attempted to trace the employee. No evidence of efforts to trace the Grievant or of a show-cause notice existed, so the termination was procedurally flawed.
Entitlement to reliefs
Notice pay, service pay and nine months' compensation awarded; accrued leave claim dismissed for lack of evidence
Absent lawful notice under section 35, the Grievant earned salary in lieu under section 36. With over seven years' service and no provident scheme enrolment, service pay was due at fifteen days' salary per year under section 35(5). Nine months' compensation was granted considering length of service and absence of contributory fault. The leave claim failed because the Grievant did not testify on it.
Legal principles established
#- A recognition agreement is not a prerequisite for a Trade Union to represent its members in court
- An employer must make efforts to trace an employee accused of absconding before dispensing with a disciplinary hearing
- Absconding from duty does not excuse the employer's duty to afford a hearing before termination
Court orders
#- 1.Declaration that the Respondent's termination of the Grievant's contract of employment was unlawful
- 2.Salary in lieu of notice of Ksh. 10,000.00
- 3.Service pay of Ksh. 35,000.00
- 4.Compensation for unfair termination of Ksh. 90,000.00
- 5.Interest on the amounts awarded at court rates from the date of the decision
- 6.The Grievant allowed to recover only actual disbursements incurred; no order as to costs under the Advocates Act and Advocates (Remuneration) Order
- 7.Award subject to applicable statutory deductions
- 8.Respondent to issue the Grievant with a Certificate of Service
- Jurisdiction invoked
- Employment and Labour Relations Court Act, section 22; Employment Act and Labour Relations Act (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Building Construction Timber and Furniture Industries Employees Union v Victory Construction Ltd (Cause 1648 of 2015) [2023] KEELRC 1580 (KLR)", Case Analysis (2023). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1580/eng@2023-06-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.