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ELRCDismissedNot stated in judgment· [2013] KEELRC 350 (KLR)

KENYA UNION OF COMMERCIAL FOOD AND ALLIED WORKERS V CORN PRODUCTS KENYA LIMITED,OKWANY CHARLES AND 17 OTHERS [2013] KEELRC 350 (KLR)

Industrial Court of Kenya
9 May 2013
JRJames Rika
1,501 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Industrial Court refused to let 18 ex-employees join a union's redundancy claim, ruling they must file their own separate cases.

What this practically means

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Executive summary

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The Claimant Union filed a Statement of Claim on 1st August 2012 on behalf of 105 members whose employment was terminated through declared redundancy. The parties were referred to conciliation before the Eldoret County Labour Officer, which resolved some issues but not the redundancy package formula. On the day the Conciliation Report was filed, 18 former employees who were not members of the Claimant Union and whose contracts were similarly terminated sought to be joined as Interested Parties. The Claimant Union did not oppose the application; the Respondent did. The Respondent argued the claim was predicated on a Collective Bargaining Agreement to which the 18 were not shown to be parties, that most had executed discharges after being paid severance at 24 days' salary per year of service (above the statutory minimum), and that they could file their own claims. The Court found the applicants had supplied insufficient information, with no draft Statement of Interest and only a sketchy affidavit lacking employment records. Employees in management had no stake in the CBA and hold individual contracts, while those claiming union membership had not explained why the Union left them out or that they remitted agency fees. The applicants had also not participated in conciliation. The Court accepted its discretion to join parties and consolidate claims to avoid conflicting jurisprudence, but held similar issues of law and similarly placed parties must be shown, which was not the case. Section 40 of the Employment Act 2007 was held to have been cited out of context, as non-joinder does not disadvantage an employee free to file an independent claim. The application was refused with no order on costs, and the applicants were left at liberty to file separate claims.

Key legal issues

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01

Whether joinder of the 18 former employees was merited

Holding

Joinder refused; insufficient information and no demonstrated nexus to the CBA

Reasoning

The applicants supplied only a sketchy affidavit without employment records or a draft Statement of Interest. Some were management employees governed by individual contracts, not the CBA. They had not participated in conciliation under the Labour Relations Act, so their issues were not certified as ripe for the Court. Their entry would muddy rather than crystallize issues; they are free to file separate claims.

p. 3
02

Whether Section 40 of the Employment Act 2007 supports joinder to avoid prejudice to non-union members

Holding

No; the provision was argued out of context and non-joinder places no employee at a disadvantage

Reasoning

Section 40 ensures a non-union member is not prejudiced in redundancy settlement merely by reason of non-union membership. The 18 were not barred from filing their own claims and severance pay offered at 24 days' pay exceeded the statutory minimum. Rejection of joinder therefore places them at no disadvantage.

p. 3
03

Avoidance of conflicting jurisprudence through joinder and consolidation

Holding

The discretion exists but requires similar issues of law and similarly placed parties; risk of divergent decisions can be managed by judicial cooperation

Reasoning

The Court has discretion to join parties and consolidate claims to avoid conflicting decisions, but this must be shown to be appropriate and practical. The trade union's collective claim cannot accommodate the 18 employees. Fears of conflicting jurisprudence are managed through judicial collegiality and comity.

p. 3

Legal principles established

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  • Joinder to a collective trade union claim requires demonstration of a common nexus to the CBA and similarity of issues and position of the parties
  • Non-joinder of an applicant to a collective claim is not a prejudice; such an applicant is free to file a separate claim

Court orders

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  1. 1.Application dated 26th October 2012 is refused
  2. 2.Applicants are at liberty to file their own separate claims
  3. 3.The Claimant and the Respondent will move the Court on the next course of action
  4. 4.No order on the costs

Authorities

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Legislation

  • Employment ActSection 40
  • Labour Relations ActNot specified
Jurisdiction invoked
Industrial Court of Kenya, referencing the Labour Relations Act and Section 40 of the Employment Act 2007

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 UNION OF COMMERCIAL FOOD AND ALLIED WORKERS V CORN PRODUCTS KENYA LIMITED,OKWANY CHARLES AND 17 OTHERS [2013] KEELRC 350 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/350/eng@2013-05-09

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