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ELRCPartially AllowedNot stated on the judgment· [2024] KEELRC 1440 (KLR)

Kenya Chemical Workers Union v Dawa Limited (Cause E633 of 2022) [2024] KEELRC 1440 (KLR)

Employment and Labour Relations Court of Kenya
14 June 2024
4,002 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled Dawa Life Sciences unfairly sacked two union members and must pay them compensation, notice pay and gratuity.

What this practically means

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Executive summary

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The Claimant Union brought this claim on behalf of two members, Gladys Jepkemboi Kandie and Caroline Kweyu, former general labourers of the Respondent, a manufacturer of human and veterinary drugs, alleging unfair and unlawful termination and victimisation for union activities. The 1st Grievant, a shop steward, was suspended on 5th June 2020 after allegedly inciting employees against signing fresh contracts and insulting managers; she was dismissed after a disciplinary hearing and pressured to resign as shop steward for her appeal to succeed. The 2nd Grievant was suspended for insubordination on 7th July 2020, then told her fixed-term contract had expired. A Conciliator at the Ministry of Labour found both terminations unfair and recommended compensation of 6 and 4 months' salary respectively; the Respondent rejected the report. The Court restated that parties escalating disputes from conciliation must demonstrate why they agree or disagree with the Conciliator's findings, which the Court may uphold, vary or depart from. The Court upheld the Conciliator's findings: the 1st Grievant was prejudged by simultaneous suspension and show-cause letters, and no valid reason for her dismissal was established - her dismissal violated ILO Convention No. 135, Recommendation No. 143, Section 5(2)(c)(ii) of the Labour Relations Act and Article 41 of the Constitution. The Respondent's belated reliance on contract expiry for the 2nd Grievant was a flawed device to sidestep procedural fairness. Reinstatement was refused as over three years had elapsed. Compensation, notice pay, salary for days worked and gratuity were awarded; leave, baggage allowance and a general declaration were declined. Costs were awarded to the Claimant.

Key legal issues

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01

Procedural fairness of the 1st Grievant's termination

Holding

Procedure was flawed; the Respondent prejudged her by suspending her before she responded to the show-cause letter

Reasoning

The show-cause letter and suspension letter were both dated 5th June 2020, showing the Respondent had made up its mind before hearing her response. Although the Respondent respected rights to charges, accompaniment, hearing and appeal, the simultaneous suspension meant her response carried no weight. The Court upheld the Conciliator's finding that the procedure was flawed.

p. 5
02

Procedural fairness regarding the 2nd Grievant

Holding

The belated assertion that her fixed-term contract had expired was a flawed way to sidestep procedural fairness

Reasoning

The Respondent first suspended the 2nd Grievant and summoned her to a disciplinary hearing, then changed tack, claiming the contract had expired. Having treated her as a continuous employee for the purpose of suspension, the Respondent could not retreat to expiry of the fixed term to avoid disciplinary rigours. The Court found this change of heart constituted flawed procedure.

p. 6
03

Validity of reasons for the 1st Grievant's dismissal - union victimisation

Holding

No valid reason was established; the dismissal violated her protection as a workers' representative under ILO Convention 135 and Recommendation 143

Reasoning

The allegations of incitement, inviting union officials, and insulting managers were not established; no evidence from the managers was adduced at the hearing. The generalized accusation of insubordination appeared rooted in her role as shop steward, and the pressure on her to resign as shop steward for her appeal to succeed evidenced victimisation contrary to ILO Convention 135, Recommendation 143, Section 5(2)(c)(ii) of the Labour Relations Act and Article 41 of the Constitution.

p. 7
04

Validity of reasons for the 2nd Grievant's termination

Holding

Neither effluxion of the fixed term nor insubordination was a valid reason

Reasoning

The Respondent's claim that the contract expired on 30th June 2020 was a self-serving distortion; she actually worked until 8th July 2020. The insubordination claim failed because she was assigned an unfamiliar BMR reconciliation task by a supervisor without training. The Court endorsed the Conciliator's finding that the grounds were jumbled and irregular.

05

Remedies

Holding

Reinstatement refused; compensation, notice, salary for days worked and gratuity awarded per CBA and Conciliator's recommendations; leave and baggage allowance declined

Reasoning

Given over 3 years had elapsed, reinstatement was unsuitable. Compensation was set at the Conciliator's recommended 6 months for the 1st Grievant and 4 months for the 2nd. Notice pay was granted per clause 13 of the CBA (60 days). Gratuity was granted under clause 17 of the CBA as there was no evidence the pension scheme was implemented. Leave and baggage allowance claims failed for lack of evidence and inapplicable CBA clauses.

p. 7

Legal principles established

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  • Parties escalating a dispute from conciliation must show the Court why they agree or disagree with the Conciliator's findings and recommendations
  • The Court is not bound by conciliation findings but must be persuaded to uphold, vary or depart from them
  • Ministry of Labour dispute settlement mechanisms are not mere formalities
  • Suspending an employee before she responds to a show-cause letter amounts to prejudging the disciplinary process
  • Workers' representatives enjoy statutory and constitutional protection against dismissal for union activities
  • Employers may not assign unskilled workers duties they are not trained for; 'General Worker' cannot be broadly applied

Court orders

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  1. 1.It is declared that termination of the 2 Grievants' contracts of employment was unfair and unlawful
  2. 2.The Respondent shall pay to the Grievants through the Claimant: 1st Grievant - compensation for unfair termination at Kshs. 158,832; notice at Kshs. 52,944; salary for days worked in July 2020 at Kshs. 2,036; gratuity at Kshs. 213,812
  3. 3.The Respondent shall pay the 2nd Grievant: compensation at Kshs. 87,280; notice at Kshs. 43,640; salary for days worked in July 2020 at Kshs. 6,547; gratuity at Kshs. 88,099
  4. 4.Costs to the Claimant
Jurisdiction invoked
First-instance employment and labour relations dispute referred to the Court after conciliation at the Ministry of Labour; protection of trade union rights under Article 41 of the Constitution invoked

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 Chemical Workers Union v Dawa Limited (Cause E633 of 2022) [2024] KEELRC 1440 (KLR)", Case Analysis (2024). Not stated on the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1440/eng@2024-06-14

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