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ELRCDismissedCause No. 282 of 2010· [2013] KEELRC 795 (KLR)

Kenya Plantation and Agricultural Workers Union v Kenya Cuttings Limited [2013] KEELRC 795 (KLR)

Industrial Court of Kenya
24 September 2013
MMM. Mbaru
1,303 words in judgment
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The bottom line

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Kenya's Industrial Court confirmed that seasonal employment contracts are lawful, but a union lost its claim by failing to prove contract durations or identify affected workers.

What this practically means

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Executive summary

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The claimant union, KPAWU, sued Kenya Cuttings Limited on behalf of 201 grievants employed at the respondent's cut-flower business, seeking conversion of their seasonal contracts into permanent contracts under the Employment Act and clause 27 of the parties' 2009/2011 CBA, nullification of the renewal of 2-month contracts, permanent status from first engagement, and long-term benefits. The respondent admitted the seasonal contracts but maintained that they had lapsed on their terms when the peak season ended, that its labour demand is dictated by market demands, and that the CBA expressly permitted hiring seasonal labour. The court held that seasonal contracts are lawful under the Employment Act, Labour Relations Act and Labour Institutions Act, and that absent ambiguity on the face of a written contract the court gives it its ordinary meaning under section 10. Clause 27(d) of the CBA deems a seasonal employee engaged beyond the maximum period of 8 years to be permanent, but the claim pleaded no facts showing how long the terminated contracts ran, so the court could not assess eligibility for conversion. The claim also failed because the 201 grievants were not listed, making any order ambiguous and impossible to implement. The claim was dismissed in its entirety with each party bearing their own costs.

Key legal issues

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01

Legality of seasonal contracts

Holding

Seasonal contracts are lawful and the court respects what parties agreed; the grievants had agreed to seasonal contracts

Reasoning

The court examined the definitions of 'contract of service' under the Employment Act, Labour Relations Act and Labour Institutions Act, and held that parties may enter into written contracts that are permanent, fixed term, periodic or seasonal. Section 10 of the Employment Act requires the court to give the ordinary meaning to a written agreement unless ambiguity is shown on its face. No ambiguity was cited in the grievants' seasonal contracts.

p. 2
02

Conversion of seasonal contracts to permanent under CBA clause 27

Holding

Conversion could not be granted because the claim did not establish that the grievants worked beyond the maximum period of 8 years stipulated in clause 27(d)

Reasoning

Clause 27(d) of the CBA deems a seasonal employee engaged beyond the maximum period of 8 years to be a permanent employee. The claim pleaded only general periods of engagement (2004, 2006 and 2009) without facts showing how long the terminated contracts ran, so the court could not assess whether the threshold was met and hence could not exercise its power to convert the contracts.

p. 2
03

Identifiability of grievants and enforceability of orders

Holding

Orders could not issue because the 201 grievants were not listed, making any order ambiguous to implement

Reasoning

The claimant acted for its members but the orders sought related to 201 grievants who were never listed. Even if granted, the orders could not be directed to particular grievants. The claimant also did not indicate which grievants had been re-engaged by the respondent or in what capacity, compounding the ambiguity.

p. 3

Legal principles established

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  • Parties may lawfully enter into written permanent, fixed term, periodic or seasonal contracts, and the court gives effect to the ordinary meaning of a written contract absent ambiguity

Court orders

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  1. 1.Claim dismissed in its entirety
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Employment Actsection 2
  • Employment Actsection 10
  • Labour Relations Actsection 2
  • Labour Institutions Actsection 2
Jurisdiction invoked
Industrial Court jurisdiction under the Labour Relations Act over employment disputes; claim brought under the Employment Act and the parties' CBA 2009/2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (15)

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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 and Agricultural Workers Union v Kenya Cuttings Limited [2013] KEELRC 795 (KLR)", Case Analysis (2013). Cause No. 282 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/795/eng@2013-09-24

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