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ELRCDismissedCause No. 108 of 1999· [2002] KEELRC 1 (KLR)

KENYA ENGINEERING WORKERS’ UNION v A.S.P. CO. LTD (Cause 108 of 1999) [2002] KEELRC 1 (KLR)

Industrial Court of Kenya
7 November 2002
3,326 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court ruled that workers hired for specific jobs and periods have no dismissal or redundancy claims when that work ends.

What this practically means

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Executive summary

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This is an Industrial Court award following a ministerial reference under Section 8 of the Trade Disputes Act, Cap. 234, concerning the alleged mass dismissal of 65 workers (later confined to 53) by A.S.P. Co. Ltd, a manufacturer of steel pipes dependent on short-term customer contracts. The Union claimed the Company, though bound by recognition and collective agreements with the Engineering and Allied Industries Employers’ Association, induced employees to leave the Union and summarily dismissed the 53 grievants for resisting renunciation of union membership; it sought terminal benefits, 12 months’ compensation for wrongful dismissal under Section 15(1)(ii), or alternatively redundancy benefits. The Company denied union membership of the grievants, alleging forged check-off forms and signed disclaimers, and maintained the grievants were engaged on short-term contracts for specific jobs and periods which expired by effluxion of time or on completion of the work. A prior ministerial investigation had recommended upholding the Company’s action, which the Union rejected. The Court found the engagements contractual in nature, held that cessation of the specific work was neither dismissal nor redundancy, and noted ILO Recommendation No. 119 permits exclusion from unfair dismissal protection for those engaged for a specific period. It found no proof of anti-union victimisation or arbitrary conduct, rejected reinstatement and all claimed benefits, dismissed the demand for grievants Nos. 54-65 as withdrawn, and rejected the Union’s demands as untenable and misconceived. Chemmuttut, J delivered the award with the full agreement of the two Members.

Key legal issues

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01

Nature of the grievants’ employment

Holding

The grievants were short-term contract employees whose services ended on completion or cessation of the specific work

Reasoning

The court perused the record including sample appointment letters headed 'APPOINTMENT – SHORT TERM ENGAGEMENT CONTRACT'. The Company was a 'contract manufacturer' dependent on short-term orders, so engagements were tied to specific jobs and periods. Re-employment on new contracts did not convert the grievants into permanent employees. The law does not force upon an employer persons whose services are not needed, nor impose fresh service periods inconsistent with the parties’ agreement.

p. 5
02

Alleged victimisation for union membership

Holding

The claim that the grievants were dismissed for seeking to join the Union failed for want of proof

Reasoning

The court found nothing showing the grievants took active part in Union affairs. The check-off forms were challenged as forgeries, some signatories being dead, departed or unaware of the Union, and several grievants had signed disclaimers. The appointment letters themselves showed terminations were not punitive but flowed from the expiry of specific engagements, undermining the allegation of anti-union mass dismissal.

p. 5
03

Entitlement to terminal benefits, reinstatement or redundancy pay

Holding

No entitlement was established; the Union’s demands were rejected

Reasoning

Because the engagements were contractual and terminable on completion or cessation of the work, and no arbitrary or whimsical conduct by management was proved, the grievants were entitled to no further terminal benefits, reinstatement or redundancy benefits. The court also noted the Ministerial investigation had earlier found the contracts had expired and mass dismissal did not arise, a recommendation the Company accepted but the Union rejected.

p. 5

Legal principles established

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  • Employment for a specific job and specific period ends automatically on completion or cessation of that work, and such termination is neither dismissal nor redundancy
  • The choice of mode of engagement (daily, contract or monthly) is a matter for the management’s discretion
  • Under ILO Recommendation No. 119, employees taken on for a specific period or on a casual or temporary basis may legitimately be excluded from protection against unfair dismissal

Court orders

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  1. 1.The demand in respect of grievants Nos. 54 to 65 is dismissed as withdrawn
  2. 2.The Union’s demands on behalf of the 53 grievants are rejected as untenable and misconceived
Jurisdiction invoked
Section 8 of the Trade Disputes Act, Cap. 234 (Ministerial reference) with statutory certificates under Section 14(9)(e) and (f)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "KENYA ENGINEERING WORKERS’ UNION v A.S.P. CO. LTD (Cause 108 of 1999) [2002] KEELRC 1 (KLR)", Case Analysis (2002). Cause No. 108 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2002/1/eng@2002-11-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.