LAWS GOVERNING UNFAIR SUMMARY DISMISSAL

THE INDUSTRIAL COURT ACT, NO. 20 OF 2011

The date of commencement of the Act is August 30, 2011.

Principal Objective (section 3)

The main objective of the Act is to enable the Court to facilitate the just, expeditious and proportionate resolution of disputes governed by this Act. The Court shall in the exercise of its powers under the Act or the interpretation of the rights of individuals and parties, seek to give effect to the main objective of the Act

Establishment of the Court (section 4)

The Industrial Court is established pursuant of Article 162(2) (a) of the Constitution. The purpose of its establishment is for settling employment and industrial relations disputes and the furtherance, securing and maintenance of good employment and labour relations in Kenya. The court is a superior court of record with the status of the High Court. It can exercise jurisdiction throughout Kenya.

Jurisdiction of the Court (section 12)

The Court has exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of the Industrial Court Act or any other written law which extends jurisdiction to the Court relating to employment. The matters which the court handles includes:

a)    disputes relating to or arising out of employment between an employer and an employee;

b)    disputes between an employer and a trade union;

c)    disputes between an employers’ organisation and a trade unions organisation;

d)    disputes between trade unions;

e)    disputes between employer organisations;

f)     disputes between an employers’ organisation and a trade union;

g)    disputes between a trade union and a member thereof;

h)   disputes between an employer’s organisation or a federation and a member thereof;

i)     disputes concerning the registration and election of trade union officials; and

j)      disputes relating to the registration and enforcement of collective agreements.

Powers of the court (section 12)

In exercise of its jurisdiction under the Act, the Court has power to make any of the following orders:

a)    interim preservation orders including injunctions in cases of urgency;

b)    a prohibitory order;

c)    an order for specific performance;

d)    a declaratory order;

e)    an award of compensation in any circumstances contemplated under this Act or any written law;

g)    an award of damages in any circumstances contemplated under this Act or any written law;

h)   an order for reinstatement of any employee within three years of dismissal, subject to such conditions as the Court thinks fit to impose under circumstances contemplated under any written law; or

i)     any other appropriate relief as the Court may deem fit to grant.

j)      Order to costs as the court considers just

THE KENYA INDUSTRIAL COURT (PROCEDURES) RULES 2010

In exercise of the powers conferred by section 21 (4) of the Labour Institutions Act, 2007, the Rules Board, in consultation with the Chief Justice, made the rules in 2010. The Industrial Court Act saved the rules that were made under Labour Institutions Act, 2007. Section 32(1) states that any regulation or other instrument made or issued under the Labour Institutions Act, 2007, shall continue to have effect as if such regulation or other instrument were made or issued under this Act.

Section 27 of the Industrial Court Act gives the Chief Justice the power, in consultation with the Committee, make rules for regulating the practice and procedure of the Court. But the Chief Justice has not made such rules and the court uses the 2010 rules.

Filing of a Claim

Rule 4 provides that party who wishes to refer a dispute to the Court under any written law shall file a statement of claim setting out various particulars including:

a)    the name, the physical and the mailing address and full particulars of the claimant;

b)    the name, the physical and mailing address and the description of the respondent;

c)    the name, the physical and mailing address of any other party involved in the dispute;

d)    the facts and grounds for the claim specifying issues which are alleged to have been violated, infringed, breached or not observed and in the case of trade dispute the rights of the employees not granted or to be granted, any other employment benefits sought and the terms of collective bargaining agreement on which the jurisdiction of the Court is being invoked;

e)    any principle or policy, convention, law or industrial relations issue or management practice to be relied upon; and

f)     the relief sought.

The statement of claim must be accompanied by a verifying affidavit.

Rule 10 (7) states that the claimant shall serve the summons issued under paragraph (1) to the respondent together with the statement of claim or the appeal. Rule 11 (4) provides that party shall, upon effecting service of pleadings on any other party, prepare and file in Court an affidavit of service in Form 3 set out in the First Schedule.

Filing a Response

Rule 13(1) provides that if a party served with a statement of the claim or memorandum of appeal intends to respond to the claim or appeal, the party shall, within fourteen days from the days of the date of service, file and serve a response to the claim or appeal. A respondent’s statement of claim should contain the following:

a)    the respondent’s name and address for purposes of service of process;

b)    a reply on issues raised in the statement of claim or appeal;

c)    any admission of statement of facts set out in the statement of claim or appeal as the respondent admits, and a denial of any statements made in the statement of facts or appeal that the respondent does not admit;

d)    any additional statements of facts which the respondent may wish to make in support of its reply;

e)    grounds upon which the respondent may wish to rely;

f)     any principle or policy, convention, law or industrial relations or management practice to be relied upon;

g)    a counterclaim; or

h)   relief that might be sought by the respondent against the claimant or the appellant.

Rule 13(4) states that the court may on application by a party to any proceedings, extend or reduce the time within which to a responding party may respond to the pleading to a pleading. In either extending or reducing the time for filing the response the court is guided by article 159 of the Constitution and section 20(1) of the Industrial Court Act, which provides that the court will not be bound by the legal technicalities when handling cases. Therefore, failure to file and serve any pleadings within the prescribed periods can be excused if the respondent has reasons warranting the late filing and service. Leave must be sought to file outside the prescribed period.

The rules do not provide for the requirement of filing the memorandum of appearance before filing a response to a suit but in practice litigants file the memorandum of appearance before the response so that they can get audience of the court.

Hearing of the case

Rule 15 provides that upon expiry of fourteen days from the date of filing and serving response to a statement of claim or a response to memorandum of appeal or such period as may be fixed by the Court, a party may apply to the Court to issue directions on hearing of the case. The Court may, on application of either party give direction within the shortest period possible.

The rules allows for interlocutory application and temporary injunctions (rule 16). This is done by way of motion and heard in an open court.

After hearing the parties the court shall, according to its procedures, deliver an award, deliver a judgment or deliver a ruling (rule 27). A party may appeal against the decision of the Court on matters of law.

THE EMPLOYMENT ACT, NO. 11 OF 2007

Section 44 of the Act provides for summary dismissal. It states that summary dismissal shall take place when an employer terminates the employment of an employee without notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term.  Vide Section 44(3) an employer can dismiss an employee summarily when the employee by his conduct indicated that he has fundamentally breached his obligations arising under the contract of service. Subsection 4 gives that which constitutes lawful ground for dismissal. The grounds include:

a)    without leave or other lawful cause, an employee absents himself from the place appointed for the performance of his work;

b)    an employee wilfully neglects to perform any work which it was his duty to perform, or if he carelessly and improperly performs any work which from its nature it was his duty, under his contract, to have performed carefully and properly; and

c)    an employee uses abusive or insulting language, or behaves in a manner insulting, to his employer or to a person placed in authority over him by his employer.