Kenya Building Construction, Timber and Furniture Industries Employees Union v Thomas & Piron Grands Lacs Ltd (Cause 79 of 2019) [2023] KEELRC 2112 (KLR)
The bottom line
#Kenya's Employment Court confirmed unions can sue for members without a recognition agreement, and found construction workers were unfairly made redundant.
What this practically means
#Executive summary
#Key legal issues
#Union locus standi without a recognition agreement
The objection to locus standi fails; a recognition agreement regulates workplace representation, not court representation.
The Respondent objected that without a recognition agreement the Union lacked standing. The Union indeed had none. But the Court of Appeal in Mombasa Soap Ltd held that a recognition agreement is not the basis on which a union represents members in court. Adopting that holding, the Court found the objection without merit.
Existence of employment relationship
The Respondent employed the Grievants at its Bar Union Primary School construction project, starting 2015 (1st-8th Grievants) and 2016 (9th and 10th Grievants).
No written contracts were issued; under section 10(7) the employees' testimony is to be believed. The Respondent did not deny the construction project, produced a Discharge and Acknowledgement form for a Grievant, and its witness conceded the Grievants were its employees paid daily.
Status of the Grievants: casual or term contracts
The Grievants were not casual employees but were on term contracts.
Although paid at daily rates, the Grievants were paid weekly and served continuously from 2015/2016 until 30 April 2017. A casual employee is paid at the end of each day; weekly payment removed the Grievants from that category. The Respondent produced no records showing daily payment or need-based engagement.
Fairness of termination/redundancy
The terminations were unfair; the Respondent failed to prove reasons, validity and fairness.
Term-contract employees are entitled to section 40 protections, including written notice of redundancy to the union or employee and the local Labour Officer. The Respondent gave no dates of project completion and no written notices. Under sections 43 and 45, the employer bears the burden of proving reasons and fairness, which it did not discharge.
Remedies
Each Grievant is entitled to one week's pay as notice pay, 15 days' pay per completed year of service as severance, and one month's salary in lieu of leave, plus earned April 2017 wages.
Having been paid weekly, notice pay is one week's wage. Severance is allowed at 15 days' pay per completed year since the Grievants did not contribute to termination. Leave records under section 10(3) were not produced, so under section 28(4) a month's salary in lieu of leave is awarded. Earned wages for April 2017 are due as of right.
Legal principles established
#- A recognition agreement is not the basis upon which a trade union represents its members in court; absence of a recognition agreement does not defeat a union's locus standi to sue for its members.
- Where an employer fails to produce a written contract as required by section 9 of the Employment Act, the Court is expected to believe the testimony of the employee (section 10(7)).
- Employees paid weekly are not casual employees; an employee paid at the end of each day is a casual employee.
- It is the employer's burden to prove the reasons and the validity and fairness of termination under sections 43 and 45 of the Employment Act.
Court orders
#- 1.The parties to compute and file the dues found owing to the Grievants in Court within 30 days for adoption
- 2.Each party to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (Cause for unfair termination of employment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Building Construction, Timber and Furniture Industries Employees Union v Thomas & Piron Grands Lacs Ltd (Cause 79 of 2019) [2023] KEELRC 2112 (KLR)", Case Analysis (2023). Cause (not specified in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2112/eng@2023-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.