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ELRCPartially AllowedCause Number 163 of 2013· [2014] KEELRC 103 (KLR)

Kenya Plantation & Agricultural Workers’ Union v Keen Kleeners Limited [2014] KEELRC 103 (KLR)

Industrial Court of Kenya
14 November 2014
4,303 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that 43 workers labelled casuals were regular employees and awarded each five months' pay for unfair non-renewal of contracts.

What this practically means

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Executive summary

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The Kenya Plantation and Agricultural Workers Union claimed on behalf of 43/44 Grievants employed as Gardeners by Keen Kleeners Limited, a labour supplier contracted to Bamburi Cement's Diani Bio-fuel Project. The dispute, initially filed in Nairobi as Cause No. 1321 of 2011 and transferred to Mombasa, alleged unfair termination of employees after they joined the Union, non-renewal of contracts, refusal to sign a Recognition Agreement, and non-payment of notice, leave, severance and overtime dues. Rika J, writing the decision after Radido J who tried the matter was transferred, acknowledged the limitations of deciding a matter not personally heard. The court found the Grievants, though engaged on successive short contracts from 2007 and labelled casuals, were regular employees under Section 37 of the Employment Act 2007 since they worked continuously and were paid monthly. It condemned the triangular labour-supply arrangement, holding that labour is not a commodity and that purchasing workers through Local Purchase Orders encourages casualization. Although fixed term contracts ordinarily carry no expectation of renewal, the routine renewal from 2007 created a legitimate expectation, and the Respondent's recruitment of 50 new employees in August 2011 amid rising man-hours meant it failed to prove a valid and fair reason for non-renewal under Sections 43 and 45. The court awarded each Grievant 4 months' salary, notice pay, 5 days' July 2011 salary and annual leave pay, and ordered the Respondent to sign a Recognition Agreement within 30 days. Reinstatement, severance and overtime were refused, and no order on costs was made.

Key legal issues

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01

Recognition Agreement

Holding

Recognition allowed; Respondent to sign within 30 days

Reasoning

The Respondent did not object to recognition in principle; its refusal rested only on the wrong entity name appearing in the draft agreement. With that defect identified, the court ordered the Claimant to submit a corrected draft and the Respondent to sign the Recognition Agreement within 30 days of the Award.

p. 5
02

Status of the Grievants - casual vs regular employees

Holding

The Grievants were regular employees under Section 37 of the Employment Act 2007, not casual employees

Reasoning

Although engaged on periodic short contracts of 1 to 6 months and labelled casuals, the majority of the Grievants worked continuously from 2007 to 2011 and were paid monthly. The court held the Respondent was incorrect to treat them as casuals, and Section 37 conferred on them the full benefits and protections of the Employment Act.

p. 5
03

Whether termination/non-renewal was unfair

Holding

Termination of the outgoing contracts combined with refusal to consider renewal was unfair under Sections 43 and 45 of the Employment Act 2007; each of the 43 Grievants awarded 4 months' salary

Reasoning

The employer bore the burden of proving the reason for termination. Contracts renewed routinely from 2007 had become automatically renewable, creating a legitimate expectation of renewal. The Respondent recruited 50 new employees in August 2011 while the man-hours required were rising, and showed no diminished work as at 31 July 2011, so it failed to prove a valid and fair reason for non-renewal. Reinstatement was refused as impracticable.

p. 6
04

Notice pay, July 2011 salary and annual leave

Holding

One month's notice pay granted; 5 days' outstanding July 2011 salary granted; annual leave pay granted as tabulated in the Claimant's Schedule; overtime and severance refused

Reasoning

Section 35(1)(c) and Section 36 obliged notice or pay in lieu, and the contracts themselves required one month notice. The Respondent's own witness acknowledged outstanding July salary and leave days. Leave records showed zero leave taken and no pay slips capturing leave pay, so leave pay was granted per the Claimant's Schedule. Overtime lacked evidential support and redundancy/severance was not established.

p. 6
05

Victimization for union membership

Holding

Not established that the Respondent declined renewal to punish union membership

Reasoning

The Respondent showed that about 90% of its remaining employees were Claimant Union members and had not been victimized, and that it had faithfully deducted and remitted union dues and conceded recognition. On that evidence the court could not conclude the Grievants' union membership caused the non-renewal.

p. 6

Legal principles established

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  • Labour is not a commodity; triangular labour-supply arrangements through Local Purchase Orders encourage casualization and should be avoided
  • Employees engaged on successive short contracts over years, paid monthly, cannot be treated as casual employees; Section 37 of the Employment Act 2007 deems them regular employees
  • While fixed term contracts generally carry no expectation of renewal, repeated renewal over years can create a legitimate expectation of renewal, and the employer must show a valid and fair reason for non-renewal
  • The burden of proving the reason for termination lies on the employer under Section 43 of the Employment Act 2007

Court orders

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  1. 1.The Respondent to sign the Recognition Agreement with the Claimant Union within 30 days; the Claimant Union to forthwith submit to the Respondent a rectified Draft Recognition Agreement
  2. 2.Each of the 43 Grievants to be paid by the Respondent within 30 days of delivery of the Award, 4 months' salary in compensation for unfair termination; 1 month salary in lieu of notice; 5 days' salary outstanding in July 2011; and annual leave pay as tabulated in the Schedule attached to the Claimant's submissions
  3. 3.No order on the costs

Authorities

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Legislation

  • Industrial Court (Procedure) Rules 2010Rule 27(1)(a)
  • Employment Act 2007Section 37
  • Employment Act 2007Section 35(1)(c)
  • Employment Act 2007Section 36
  • Employment Act 2007Section 40
  • Employment Act 2007Section 43
  • Employment Act 2007Section 45
Jurisdiction invoked
Industrial Court (Procedure) Rules 2010, Rule 27(1)(a) - trade dispute referred under the Labour Relations Act framework

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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 Keen Kleeners Limited [2014] KEELRC 103 (KLR)", Case Analysis (2014). Cause Number 163 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/103/eng@2014-11-14

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