[2019] KEELRC 2328 (KLR)
The court declined to grant the interim orders for reinstatement of the 68 dismissed employees, holding that reinstatement is a final remedy that should only be considered after a full hearing on the merits. The court found that the employment relationship between the grievants and the respondent was ordinary, and...
Source-derived case information.
- Citation
- [2019] KEELRC 2328 (KLR)
- Parties
- Applicant: Kenya Tertiary and Schools Workers Union; Respondent: The University Council, University of Nairobi
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 25 of 2019
- Procedural Posture
- Employment Cause / Ruling on Interlocutory Application for Interim Reinstatement
- Outcome
- Interim orders for reinstatement declined; suit to proceed to hearing on merits.
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Termination, Mass Dismissal, Reinstatement, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Tertiary and Schools Workers Union
Applicant
The University Council, University of Nairobi
Respondent
Procedural Posture
Employment Cause / Ruling on Interlocutory Application for Interim Reinstatement
Legal Issues
- 1 Whether the mass termination of 68 unionisable staff by the respondent was unprocedural and unfair in violation of the Employment Act, 2007.
- 2 Whether the court should grant interim orders for reinstatement of the dismissed employees before a full hearing.
- 3 Whether the absence of written notices rendered the terminations null and void.
Ratio Decidendi
The court declined to grant the interim orders for reinstatement of the 68 dismissed employees, holding that reinstatement is a final remedy that should only be considered after a full hearing on the merits. The court found that the employment relationship between the grievants and the respondent was ordinary, and it would not be prudent to reinstate the employees before determining the substantive issues. The court directed that the union may list the cause for directions as to hearing on a priority basis after the close of pleadings. No order as to costs was made.
Court Disposition
Interim orders for reinstatement declined; suit to proceed to hearing on merits.
Orders
- Application for interim reinstatement of the 68 dismissed employees is declined.
- Union at liberty to list the cause for directions as to hearing after close of pleadings.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 25 OF 2019
KENYA TERTIARY AND SCHOOLS
WORKERS UNION....................................................CLAIMANT
v
THE UNIVERSITY COUNCIL, .
UNIVERSITY OF NAIROBI.............................RESPONDENT
RULING
1. The Kenya Tertiary & Schools Workers Union (Union) moved the Court on 21 January 2019 against the University Council, University of Nairobi (Respondent) seeking orders
1. ….
2. THAT, the unprocedural and unfair mass termination of the Respondent’s unionisable staff employees without issuing of written notices as enshrined under section 35(1)(c) and/or Section 40 of the Employment Act, 2007, Laws of Kenya is a violation of workers’ rights ab initio and hence declared NULL and VOID forthwith.
3. THAT, pending the hearing and determination of this suit and/or until further orders of this Court, an order do issue forthwith quashing the unprocedural and unfair mass terminations of Sixty Eight (68) plus unionisable staff employees of the Respondent.
4. THAT, pending the hearing and determination of this suit and/or until further orders of this Court, an order do issue forthwith for ’’REINSTATEMENT’’ of all the Sixty Eight (68) plus unionisable staff employees of the Respondent.
5. THAT, costs of the application and suit be provided for.
2. On the same day, the Court directed the Union to serve the Respondent for inter partes hearing on 28 January 2019.
3. Despite service (affidavit of service on record), the Respondent did not attend Court for the hearing. The Court allowed the Union to urge the application.
4. The affidavit in support of the application deposes that the contracts of the 68 grievants were terminated on 2 January 2019.
5. The effect of the substantive orders sought by the Union would be reinstatement of the already dismissed employees.
6. The 68 employees were in an ordinary employment relationship with the Respondent and it would not be prudent to reinstate them before a hearing on the merits.
7. Reinstatement in such circumstances is a final remedy.
8. The Court therefore declines to grant the orders sought.
9. The Union should be at liberty to cause the Cause listed for directions as to hearing on a priority basis after the close of pleadings.
10. No order as to costs.
Delivered, dated and signed in Nairobi on this 5th day of February 2019.
Radido Stephen
Judge
Appearances
For Union Mr. Agura, Secretary Union
Respondent did not participate
Court Assistant Lindsey