Non-ratified treaty;¹ Work of international supervisory bodies²

Dismissal/ Right to strike/ Protection against anti-union discrimination/ Direct resolution of a dispute on the basis of international law

In this case, the Universities Academic Staff Union, representing five of its members, alleged that the respondent university had illegally and unfairly terminated the contracts of the five workers in question. In October 2006, the trade union held a strike. The union held that the disciplinary committee proceeded to dismiss the workers using their participation in the strike as justification. In its defence the University argued that the strike had been declared illegal by the relevant legal authorities, and participants in the strike had been ordered to return to work immediately. These facts motivated the University to dismiss the professors who had refused to return to work.

On examining the facts of the case, the Industrial Court of Kenya concluded that the five workers had been dismissed on the basis of their participation in activities preceding the strike and in the strike itself. In the cases of Dr. Mary Goretti Kiriaga and Dr. Billy G Ng'ong'ah, the dismissals were also motivated by their position as union officials.

The Court then proceeded to highlight the legal provisions applicable to the case, indicating that at the time the events took place, national labour legislation had not been very advanced; “However, that as it may be Kenya is a member of the ILO and is expected to respect its international obligations including respect for International Labour Standards.”³ The Court underlined the importance of protecting trade union members against acts of anti-union discrimination, and in particular of the need to protect workers’ labour relations from being terminated based on their membership of a trade union or participation in trade union activities.  In this respect, the Court referred to ILO Termination of Employment Convention, 1982 (No. 158) and the General Survey of the Committee of Experts of the ILO on Protection against Unjustified Dismissal, in which the Committee states that:⁴

“The need to base termination of employment on a valid reason is the cornerstone of the Convention's provisions. The adoption of this principle removes the possibility for the employer to unilaterally end an employment relationship of indeterminate duration by means of a period of notice or compensation in lieu thereof.”

Article 5 of ILO Convention No. 158 states that: “The following, inter alia, shall not constitute valid reasons for termination: (a) union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours; (b) seeking office as, or acting or having acted in the capacity of, a workers' representative […]

Protection against acts of anti-union discrimination, and in particular termination of employment for such activities, is particularly necessary for trade union leaders and representatives since in order to be able to fulfil their duties freely and independently they must have the guarantee that they will not suffer any prejudice as a result of holding trade union office or taking up trade union activities […]”⁵

The Court then indicated that Professor K. Inyani J. Simala had not been given an opportunity to defend himself, and that it was also appropriate to refer to ILO Convention No. 158 in this respect, stating that: 

“Convention No. 158 at Article 7 provides that: ‘The employment of a worker shall not be terminated for             reason related to worker's conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity.’”⁶

In order to decide on the appropriate remedy for the five workers, the Court referred to the Digest of Decisions and Principles of the Committee of on Freedom of Association, which in paragraph 837 states that: 

“No one should be subjected to anti-union discrimination because of legitimate trade union activities and the remedy of reinstatement should be available to those who are victims of anti-union discrimination.”⁷ 

In conclusion, and based on ILO Convention No. 158 and the pronouncements of the ILO Committee of Experts, the Court ruled that the termination of the employment contracts in question was illegal and unjustified. Based on the above, and in line with the recommendations of the ILO Committee on Freedom of Association, the Court ruled that the best form of compensating the workers would have been to reinstate them; however, since a long period of time had passed between the dismissals and the judgement, the Court instead ordered compensation to be paid to the workers.

¹ ILO Termination of Employment Convention, 1982 (No. 158).

² ILO Committee of Experts on the Application of Conventions and Recommendations; ILO Committee on Freedom of Association.

³ Page 38 of the decision.

⁴ ILO: Protection against Unjustified Dismissal General Survey of the Committee of Experts on the Application of Conventions and Recommendations, International Labour Conference, 82 Session, Geneva, 1995.

⁵ Pages 39 and 40 of the decision.

⁶ Page 43 of the decision.

⁷ ILO: “Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO”, fifth revised edition, 2006.