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ELRCPartially AllowedCause (not specified in judgment)· [2023] KEELRC 2112 (KLR)

Kenya Building Construction, Timber and Furniture Industries Employees Union v Thomas & Piron Grands Lacs Ltd (Cause 79 of 2019) [2023] KEELRC 2112 (KLR)

Employment and Labour Relations Court
20 September 2023
1,203 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Union sued Thomas and Piron Grands Lacs Ltd on 11 September 2019 alleging unlawful redundancy of 10 Grievants engaged at the Respondent's construction project at Bar Union Primary School in Nyahera. The Respondent objected that, lacking a recognition agreement with the Union, the Union had no locus standi. Following the Court of Appeal's decision in Mombasa Soap Ltd v Kenya Shoe and Leather Workers Union, the Court held that a recognition agreement is not the basis on which a union represents members in court and dismissed the objection. On the merits, the Court found that the Grievants were employed by the Respondent from 2015 (1st to 8th Grievants) and 2016 (9th and 10th), relying on their testimony under section 10(7) of the Employment Act, the Respondent's Discharge and Acknowledgement form, and its witness's concession. Although paid at daily rates, the Grievants were paid weekly and served continuously, so they were on term contracts, not casual employment. The Respondent gave no written redundancy notices and failed to prove reasons or the validity and fairness of the terminations under sections 43 and 45, and the Court concluded the terminations were unfair. Remedies awarded were one week's pay as notice pay, 15 days' pay per completed year of service as severance, one month's salary in lieu of leave, and earned April 2017 wages. The parties were ordered to compute and file the dues within 30 days for adoption, and because the Claimant had no recognition agreement with the Respondent, each party was ordered to bear its own costs.

Key legal issues

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01

Union locus standi without a recognition agreement

Holding

The objection to locus standi fails; a recognition agreement regulates workplace representation, not court representation.

Reasoning

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.

p. 2
02

Existence of employment relationship

Holding

The Respondent employed the Grievants at its Bar Union Primary School construction project, starting 2015 (1st-8th Grievants) and 2016 (9th and 10th Grievants).

Reasoning

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.

p. 2
03

Status of the Grievants: casual or term contracts

Holding

The Grievants were not casual employees but were on term contracts.

Reasoning

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.

p. 3
04

Fairness of termination/redundancy

Holding

The terminations were unfair; the Respondent failed to prove reasons, validity and fairness.

Reasoning

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.

p. 3
05

Remedies

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The parties to compute and file the dues found owing to the Grievants in Court within 30 days for adoption
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Labour Relations ActSection 2
  • Employment Act, 2007Section 9
  • Employment Act, 2007Section 10(7)
  • Employment Act, 2007Section 40(1)
  • Employment Act, 2007Sections 43 and 45
  • Employment Act, 2007Section 10(3)
  • Employment Act, 2007Section 28(4)

Cases cited (1)

  • Mombasa Soap Ltd v Kenya Shoe and Leather Workers Union
    (2020) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (Cause for unfair termination of employment)

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 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.