Introduction

The Employment and Labour Relations Court in Charles Waweru Kimani & 222 Others v Kenya Kazi Services Limited [ELRC Cause No. E497 of 2020] recently delivered a judgment in which it determined that an employee’s participation in an unprotected strike amounts to a violation of their contract of employment and constitutes fair reason for dismissal or imposition of a disciplinary penalty. The court held that whereas employees have a right to go on strike, a strike that violates the law would cease to be legally protected. Dentons Hamilton Harrison & Mathews successfully defended the employer, managing to have the claim dismissed with costs to the employer.

The court defined industrial action as concerted actions taken by employees to put pressure on their employer to meet certain demands, including strikes and actions short of strikes, such as picketing, go-slows, sit-ins, and demonstrations. The key element of industrial action is the cessation of work by employees aimed at pressuring the employer to redress grievances and grant certain demands of the whole group and not just individual employees.

Applicable Law

Article 41(2) (d) of the Constitution of Kenya affords every worker the right to go on strike. This right is, however, limited in various instances, including where the parties have agreed to refer their dispute to court or arbitration. 

The Facts

The claimants and their former employer had previously had a dispute in court that culminated in an award in favour of the employees. The employer sought to challenge the award but ultimately negotiated with the employees’ trade union, resulting in the signing of a fresh collective bargaining agreement. Dissatisfied with their union’s follow-up on the award, the claimants sought out their employer for separate negotiations during which the employer obtained court orders barring the employees from engaging in any form of industrial action.

Despite the orders, the claimants proceeded to go on strike on what they claimed was a failure by their employer to honour the terms of the earlier award. Following the strike, several employees were cited for disciplinary action and ultimately dismissed from employment. The claimants thereafter filed suit against their former employer seeking various remedies, including compensation for wrongful and unfair termination. 

The Court’s Decision

Having recognised every worker’s right to go on strike, the court held that a strike that violates the law ceases to have legal protection. The court cited various instances where a strike would be deemed to be unprotected including:

• strikes aimed at enforcing court decisions;
• strikes that are conducted in a manner that violates other employees’ rights and freedoms, such as the right not to participate in industrial action or the right to disassociate from industrial action;
• strikes involving employees providing essential services whose interruption would endanger the life of a person or health of the population or any part of the population; and
• strikes that fail to meet established legal requirements, such as prior conciliation and strike notifications.

To have legal protection, the court further held that industrial actions should concern defined terms and conditions of employment and the subject matter must be known to both the employer and employees. The expansion of grievances by employees during industrial action would place it outside the protection of the law.

The court concluded by finding that employees who engage in an unprotected strike are deemed to have acted in violation of their contract of employment and such participation constitutes a fair reason for dismissal or imposition of a disciplinary penalty under the Employment Act.