Doctors can’t be fired for engaging in protected strike

On March 6, the Kenya Medical Practitioners, Pharmacists and Dentists Union (KMPDU) formally issued a seven-day notice as required under the Labour Relations Act for withdrawal of services by medical practitioners, pharmacists and dentists in all institutions under the Ministry of Health and county governments.

KMPDU is pushing for the fulfillment of a 2017 Collective Bargaining Agreement (CBA) in which there was a tripartite agreement to pay intern doctors Sh206,000 per month in salaries and allowances, something which the two levels of government have rejected saying the CBA is flawed and untenable because they signed under duress.

While the issue of the intern doctors is grave considering that they cannot qualify without getting an intern position, it may have just been the spark that ignited the industrial action by the medics. Other grievances are poor working conditions and lack of equipment and accessories to facilitate the highest attainable standard of health care services.

On March 13, Kenyatta National Hospital (KNH) moved to court seeking to bar its doctors from going on strike. This was after the lapse of the strike notice.

Employment and Labour Relations Court Judge Byram Ongaya appeared to issue orders aimed at putting the strike on hold when he said that such an industrial action would cause major disruption for hospitals and patients and it was prudent a solution is sought as KMPDU and the State argue their case in court

On April 4, Nyeri Governor Mutahi Kahiga directed that 59 striking doctors working in the county be dismissed. A few days later, Kiambu and Kilifi counties followed suit, with Kiambu directing its treasury to immediately stop paying striking staff as Kilifi vowed to fire doctors participating in the strike. Kakamega, Tharaka Nithi and Kisumu counties have  given the doctors until April 15 to return to work or face termination of contracts.

It has also emerged that the government issued an ultimatum through a confidential letter sent to KMPDU Secretary-General Davji Atellah on April 11, giving them 24 hours to call off the strike or face disciplinary action.

The threats to fire striking doctors have intensified, especially after the collapse of negotiations.

But can an employer sack striking employees exerting their constitutionally guaranteed right to industrial action? Put differently, can the national and county governments legally dismiss doctors for pushing for the full implementation of a CBA that the parties agreed on?

The answer to the questions above lie on whether the doctors strike is protected or unprotected. Under the Labour Relations Act in South Africa, for a strike to be deemed “protected”, legislation requires that unsatisfied employees first make use of the employer’s internal grievance procedure to try and resolve the grievance.

When the outcome of the grievance is not satisfactory, the employee can refer the matter to the Commission for Conciliation, Mediation and Arbitration.

If the dispute cannot be resolved, the commissioner will issue a certificate stating the matter is unresolved and that the employees have the right to embark on a protected strike.

However, there is still an obligation on the employees to notify the employer in writing of their intention to strike by giving the employer at least 48 hours’ notice of the intended strike.

Article 41 of the Constitution of Kenya provides for the right to fair labour practices, including the right to fair remuneration, reasonable working conditions, to form, join or participate in the activities and programmes of a trade union and to go on strike.

KMPDU issued a seven-day strike notice on March 6 in accordance with the law. The intervention of the Employment and Labour Relations Court as sought by KNH came after the notice had lapsed.

The issues that the over 7,000-member  KMPDU has raised are not new. They were part and parcel of a negotiated settlement after a strike in 2017 that paralyzed health services  for 100 days.

Hurting as the strike may be, the government cannot legally dismiss striking doctors for engaging in a protected strike.