Description
Mode of filing labour disputes involving more than one employee – person who is mandated by other employees to sign and institute a labour dispute – a dispute was filed by 21 employees – section 86(1) of the Employment and Labour Relations Act, Rule 12(1) read together with Rule 5(2) and (3) of the Mediation Rules – an objection on non-joinder or misjoinder of parties –regulations 41(2) and 44(1) of the Public Service Regulations 2003 (GN NO.168 of 2003) – proof of service of charges and notification of disciplinary hearing – rule 13(6) of the Code of Good Practice – right to be heard – participating in an unlawful strike – part VII of the ELR Act – reason for termination stated in the termination letters which is “Makosa ya Kiutumishi” differs from the reason communicated through mass media namely participating in an unlawful strike – communication of reason for termination of employment through mass media.
- Filing a labour dispute before the Commission for Mediation and Arbitration – one person who is mandated by other employees in writing can sign and institute a labour dispute involving more than one employee – details of additional parties should be written on a separate paper, signed by all parties and attached to CMA F1 (p. 12). No need to file an application for a representative suit under Order VIII Rule 7 of the CPC because there are specific provisions under the labour laws which provide for the mode of filing of labour disputes involving more than one employee (p. 15).
- A dispute was filed by 21 employees but the employer contended that it was filed by only one employee. The contention was rejected because page 4 of CMA F1 indicated inclusion of all employees in as much as it referred to the relief claimed by the employees or for each employee (p. 13); the 2nd to 21st employee gave notice mandating the first employee to sign on their behalf through a list of their names in a separate piece of paper and signed against their names (p. 14); and the employer was not prejudiced at all because in her documents she made reference to all 21 employees (p. 16) section 86(1) of the Employment and Labour Relations Act, Rule 12(1) read together with Rule 5(2) and (3) of the Mediation Rules. .
- An objection on non-joinder or misjoinder of parties – respondent failed to raise it at the earliest opportune time – it means that she waived it (p. 17).
- Where disciplinary proceedings may lead to termination of the employee’s employment, the employer has the duty to prepare a formal charge against such an employee – Regulations 41(2) and 44(1) of the Public Service Regulations 2003 (GN NO.168 of 2003) (p. 2010).
- No proof of service of charges and notification of disciplinary hearing was served on the employees – employer claimed to have done service but did not provide sufficient proof of that service to each employee (pp. 21 – 22).
- Ex-parte hearing against employees was conducted by the Disciplinary Committee under the provisions of Rule 13(6) of the Code of Good Practice before tangible efforts to serve the employees were made – it was held that the hearing was premature (p. 23).
- Principles of natural justice require a party not to be condemned unheard (p. 24).
- The respondent’s termination of the appellants’ employment without giving them the opportunity of being heard violated the Constitutional right on principles of natural justice, therefore, it was void and of no effect (p. 25).
- The appellants’ employment was terminated and their letters of termination showed the reason for termination was “Makosa ya Kiutumishi” which the employer alleged to refer to participating in an unlawful strike – it was held that the offence of participating in an unlawful strike, being a specific offence, would have been specifically shown in the charged offence; and in the letters of termination rather than referring to ” Makosa ya Kiutumishi” which is taken as a general term for disciplinary offences (pp. 27 – 28).
- “Makosa ya Kiutumishi” is not among the offences under Part VII of the ELR Act the commission of which could lead to termination of employment (p. 28).
- The fact that the respondent gave a different reason for termination in the termination letters which is “Makosa ya Kiutumishi” and that of “participating in an unlawful strike” through mass media later proves that she had no valid or fair reason for the appellants’ termination (p. 29).
- Communication of reason for termination through mass media is not a proper means of communication unless there was an order of the court for a substituted service (p. 29).
- Employees were not charged and heard before being terminated from their employment – that amounts to violation of the cardinal principle of right to be heard – consequently, the termination was void and of no effect (p. 29).
