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ELRCPartially AllowedNot stated in the judgment text provided· [2023] KEELRC 1580 (KLR)

Kenya Building Construction Timber and Furniture Industries Employees Union v Victory Construction Ltd (Cause 1648 of 2015) [2023] KEELRC 1580 (KLR)

Employment and Labour Relations Court
22 June 2023
2,348 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ELRC first-instance judgment by Manani J, delivered on 22nd June 2023, concerned a Grievant employed as a night guard by the Respondent at Ksh. 10,000 per month, whose contract was terminated on 5th July 2013 following the theft of a machinery battery and alleged absconding from duty. The Claimant Trade Union sued on his behalf. The court framed three issues: the Claimant's locus standi, the lawfulness of the termination, and entitlement to reliefs. On the first issue, the court held that a recognition agreement is only a prerequisite for collective bargaining under section 54 of the Labour Relations Act and is not required for court representation, following the Court of Appeal's decision in Modern Soap Factory v Kenya Shoe and Leather Workers Union; check-off forms and dues payments proved membership. On the second issue, the court found the termination procedurally flawed: under sections 41, 43, 44 and 45 of the Employment Act, the employer bore the burden of proving valid reason and due process, and alleged absconding did not excuse the duty to convene a disciplinary hearing; there was no evidence of efforts to trace the Grievant or of a notice to show cause. The termination was declared unlawful. On reliefs, the court awarded Ksh. 10,000 salary in lieu of notice, Ksh. 35,000 service pay (fifteen days per year over seven years) and Ksh. 90,000 being nine months' gross salary as compensation for unfair termination, with interest and subject to statutory deductions, plus a Certificate of Service. The accrued leave claim was dismissed for want of evidence. As proceedings were prosecuted by a union rather than an advocate, the Grievant recovered only actual disbursements, with no order as to costs under the Advocates Act.

Key legal issues

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01

Whether the Trade Union Claimant required a recognition agreement to represent the Grievant

Holding

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

Reasoning

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.

p. 2
02

Whether the termination was lawful

Holding

Termination was procedurally flawed as the Respondent afforded no hearing despite alleging absconding, and no notice to show cause was proved

Reasoning

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.

p. 4
03

Entitlement to reliefs

Holding

Notice pay, service pay and nine months' compensation awarded; accrued leave claim dismissed for lack of evidence

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Declaration that the Respondent's termination of the Grievant's contract of employment was unlawful
  2. 2.Salary in lieu of notice of Ksh. 10,000.00
  3. 3.Service pay of Ksh. 35,000.00
  4. 4.Compensation for unfair termination of Ksh. 90,000.00
  5. 5.Interest on the amounts awarded at court rates from the date of the decision
  6. 6.The Grievant allowed to recover only actual disbursements incurred; no order as to costs under the Advocates Act and Advocates (Remuneration) Order
  7. 7.Award subject to applicable statutory deductions
  8. 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

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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 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.