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ELRCPartially AllowedNot stated in the judgment· [2017] KEELRC 1994 (KLR)

Kenya Plantation & Agricultural Workers Union v Zena Roses Kenya (Sosiani, Asia & Thika Farm) [2017] KEELRC 1994 (KLR)

Employment and Labour Relations Court
7 November 2017
MMM. Mbaru
3,880 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court found an employer's mass redundancy unfair for ignoring the union, but refused full compensation because the union couldn't prove exactly who was affected.

What this practically means

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Executive summary

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The claimant union, holding a Recognition Agreement and a CBA with the respondent agricultural employer, claimed the wrongful and unfair redundancy of 214 employees effected through notices of 15th September, 2016 and December, 2016. Interim orders restraining the redundancy were issued on 28th September, 2016, yet the respondent declared over 150 employees redundant in December, 2016, prompting contempt proceedings. The respondent contended the interim orders had lapsed, that it complied with section 40 of the Employment Act, and that it had purged the contempt by recalling the notices and reinstating the workers, many of whom signed discharge vouchers after payment through their own advocates. The court framed three issues: contempt, unfair termination, and remedies. It found the respondent breached subsisting court orders but had purged the contempt, being absolved on 21st February, 2017. On the substantive claim, the court held that section 43 places the burden of proving valid reasons and fair procedure on the employer; the respondent failed to substantiate its operational reasons, ignored requests to consult the union, and did not disclose selection criteria, contrary to sections 40 and 43 and the ILO conventions. Dealings with unionisable employees through individual advocates and discharge vouchers, without notice to the union, circumvented section 48 of the Labour Relations Act and the CBA, amounting to an unfair labour practice. However, because the claimant amended its claim without listing the affected employees, and no records verified who resumed work or signed vouchers, the orders sought did not issue. Instead, the court directed the parties to meet within thirty days, with the Deputy Registrar present, to list the affected employees' positions, wages and service, on which basis the court will assess terminal dues.

Key legal issues

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01

Whether the redundancy and terminations were procedurally fair under sections 40 and 43 of the Employment Act

Holding

The respondent failed to substantiate its reasons and did not follow the mandatory procedures of sections 40 and 43, including consultation with the claimant union and criteria for selection of affected employees

Reasoning

The court held that the burden of proving the reason and fairness of termination rests on the employer under section 43. The respondent did not substantiate the purported reasons of low production, low sales and high farm input costs, did not consult the claimant union despite the CBA and Recognition Agreement, and the notices did not establish the criteria used to select employees across the farms. Reliance on discharge vouchers executed by employees through an advocate, without notice to the union, circumvented section 48 of the Labour Relations Act and negated the sanctity of the CBA.

p. 5
02

Whether the respondent was in contempt of the interim orders of 28th September, 2016

Holding

The respondent acted in breach of subsisting orders, but the contempt was purged and the court absolved the respondent on 21st February, 2017

Reasoning

The respondent proceeded to declare over 150 employees redundant through fresh notices dated 6th December, 2016 despite interim orders restraining redundancy. Contempt proceedings were initiated, the respondent's director attended court, made an undertaking to reinstate the employees, recalled the notices and reinstated workers. On 21st February, 2017 the court absolved the respondent of the contempt and directed the parties to address the substantive issues.

p. 2
03

Whether the remedies sought (compensation of twelve months' salary, certificates of service, costs) were due

Holding

The orders sought could not issue because the claimant did not specify the affected employees after amending the claim; the court instead ordered a joint verification meeting to enable assessment of terminal dues

Reasoning

The initial claim cited 214 employees but the Amended Memorandum of Claim stated no numbers. The County Labour Officer's report noted 159 employees declared redundant, 7 resumed work and terminal dues were paid witnessed by union officials, but no work records were attached. The court found it could not verify how many employees were affected, resumed work or signed discharge vouchers, and therefore declined the orders sought, directing a meeting within 30 days before the Deputy Registrar for assessment of terminal dues.

p. 7

Legal principles established

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  • Section 43 of the Employment Act places the burden on the employer to prove the reason for termination; failure to do so renders the termination unfair
  • Where parties are bound by a registered CBA, the trade union must be informed of matters affecting terms and conditions of work; dealing with unionisable employees outside the CBA is an unfair labour practice
  • The employer must demonstrate that the termination of employment is attributable to the redundancy and must issue individual letters or notices of termination

Court orders

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  1. 1.The orders sought shall not issue
  2. 2.Within thirty (30) days both parties shall hold a meeting and address the number of affected employees with regard to the notice of 15th September, 2016 and the notice of 6th December, 2016 respectively
  3. 3.At the meeting the parties shall list (1) the last position held; (2) the gross wage earned; and (3) date of employment setting out the number of years in the service of the respondent
  4. 4.The Court Deputy Registrar to be present at the meeting to verify the records
  5. 5.On that basis the court shall make an assessment of terminal dues

Authorities

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Legislation

  • Employment Act, 2007section 40 (including 40(1)(b) and (c))
  • Employment Act, 2007section 43(1) and (2)
  • Employment Act, 2007section 45(1) and (2)
  • Employment Act, 2007section 47(5)
  • Labour Relations Act, 2007section 48(6), (7) and (8)
  • ILO Convention No. 158
  • ILO Convention No. 166

Cases cited (5)

  • Hadkinson versus Hadkinson
    [1952] 2 All ER
  • Sahihi Housing Limited versus Ferdinand Ndungu Waititu
  • International Planned Parenthood Federation versus Pamela Ebot Arrey Effiom
    [2016] eKLR
  • Kenfreight (E.A.) Limited versus Benson K. Nguti
    [2016] eKLR
  • Kenya Airways Limited versus Aviation & Allied Workers Union Kenya & 3 others
    [2014] eKLR
Jurisdiction invoked
First-instance jurisdiction of the Employment and Labour Relations Court over the trade dispute (Employment Act, 2007 and Labour Relations Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Plantation & Agricultural Workers Union v Zena Roses Kenya (Sosiani, Asia & Thika Farm) [2017] KEELRC 1994 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1994/eng@2017-11-07

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