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ELRCDismissedCause No. 153 of 2005· [2006] KEELRC 9 (KLR)

TAILORS & TEXTILES WORKERS’ UNION v KENYA SHIRTS MANUFACTURERS LTD. [2006] KEELRC 9 (KLR)

Industrial Court of Kenya
13 July 2006
CCCharles P. ChemmuttutJKJ.M. KilonzoOWO.A. Wafula
1,622 words in judgment
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The bottom line

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Kenya's Industrial Court refused to force a struggling employer to confirm long-serving casual workers because they had already left the company.

What this practically means

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Executive summary

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The Union reported a trade dispute, certified by the Labour Commissioner under Section 14 of the Trade Disputes Act, Cap. 234, concerning the Company's refusal to confirm fifteen casual employees into permanent employment, contrary to Clause 10 of the parties' collective agreement which required casuals employed continuously for over three months to be employed on permanent terms. The parties held meetings without resolution and the Minister for Labour appointed an investigator whose report found the grievants had served 2-8 years continuously with clean records and could not, given the statutory definition of casual employment in Section 2 of the Employment Act, Cap. 226, be termed casuals; he recommended confirmation from the fourth month of engagement. The Union accepted the recommendation but the Company rejected it. Before the Court, the Union, through Mr. Maina, sought retrospective confirmation of the grievants, including those who had left, contending this was their contractual right. The Company, through Mr. Ambenge, denied long service, attributed its plight to Mitumba competition, pleaded insolvency and imminent closure, and submitted the demand was redundant as the workers had left employment. The Court held that confirmation is a matter of internal management discretion, though it ordinarily relates back to the date of induction. Since the grievants were no longer in employment and the Company's insolvency and closure plans were unchallenged, there was nothing left to adjudicate; the demand was rejected as baseless and redundant. Members Kilonzo and Wafula concurred. No costs order was made.

Key legal issues

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01

Whether employees engaged continuously for long periods remain 'casuals' under the Employment Act

Holding

Continuous service of 2-8 years takes the grievants outside the statutory definition of a casual employee; the Company's assertion that they were casuals was untenable

Reasoning

Section 2 of the Employment Act defines a casual as one paid at the end of each day and not engaged for longer than 24 hours at a time. The Minister's investigation found the grievants had served 2-8 years continuously with clean records, so their duties and continuity of service could not be termed casual. The Union invoked Clause 10 of the collective agreement requiring conversion of casuals employed continuously for more than three months to permanent terms. However, this finding on status did not translate into an order because the employees had left employment.

p. 2
02

Whether the Court could order retrospective confirmation where the grievants were no longer in employment and the employer pleaded insolvency

Holding

No - the demand was rejected as baseless and redundant because the Company's assertion that the workers had left and that it was insolvent and about to close was not challenged by the Union

Reasoning

The Company stated that it had only 14 permanent employees and no casual workers, as the workers in dispute had left employment, and that it was insolvent and would lay off its entire workforce by December 2006 due to losses attributed to Mitumba competition. The Union did not challenge these assertions. The Court held there was consequently nothing left to adjudicate upon, and the employer's discretion over confirmation could not be exercised over persons no longer in service.

p. 3

Legal principles established

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  • Confirmation of employees is a matter of internal management discretion; however, in the normal course and where conditions are fulfilled, confirmation relates back to the date of original induction into service
  • An employee has no automatic right to be confirmed from the date of original engagement, and until confirmation can have no lien on or right of retention in the service
  • A demand for confirmation becomes moot and unenforceable where the affected employees are no longer in employment and the employer's asserted insolvency/closure is unchallenged

Court orders

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  1. 1.The Union's demand for confirmation of the casual employees into permanent employment is rejected as baseless and redundant
Jurisdiction invoked
Section 14(7) and (9)(e) and (f) of the Trade Disputes Act, Cap. 234, Laws of Kenya (dispute referred via Notification of Dispute Form 'A' with statutory certificate of the Labour Commissioner)

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, "TAILORS & TEXTILES WORKERS’ UNION v KENYA SHIRTS MANUFACTURERS LTD. [2006] KEELRC 9 (KLR)", Case Analysis (2006). Cause No. 153 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2006/9/eng@2006-07-13

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