Union Of National Research & Allied Institutes Staff Of Kenya (Unrisk) v Kenya Industrial Research & Development Institute (Kirdi) [2015] KEELRC 859 (KLR)
The bottom line
#The Industrial Court ruled that workers on repeatedly renewed short-term contracts are not temporary, and employers cutting jobs for financial reasons must follow proper redundancy procedures or pay.
What this practically means
#Executive summary
#Key legal issues
#Whether the 52 grievants were temporary employees
They were not temporary employees, having served continuously on back-to-back three-month contracts for between six months and two and a half years, beyond the three-month ceiling in Clause 2.1(a) of the CBA
The CBA limits temporary terms to three months after which the contract is to be reviewed. The Minister's findings, which the respondent supported, showed continuous service of six months to two and a half years on renewable contracts without breaks. Continuous service beyond the contractual ceiling takes the grievants outside the temporary category, and they could not be treated as casual employees.
Whether the grievants were entitled to union membership and to benefit from the CBA
Yes. The CBA did not exclude temporary employees from union membership or from its benefits; membership eligibility arose after one month of employment
The CBA's scope applied to all employees from job group IR.1 to IR.15, and the union shop clause provided for membership after one month of employment. Having served between six months and two and a half years, all grievants were entitled to union membership and to benefit from the CBA despite the clause restricting employees engaged on temporary terms.
Whether the grievants were declared redundant
Yes. Termination citing the employer's financial challenges is a loss of employment at the employer's initiative amounting to abolition of office, hence redundancy
Section 2 of the Employment Act defines redundancy as involuntary loss of employment at the employer's initiative where services are superfluous, including abolition of office. The termination letters gave financial challenges as the reason. That is squarely within the statutory definition notwithstanding the respondent's insistence that these were normal terminations.
Whether the claimant is entitled to the reliefs sought
Partially. The redundancy was unlawful for non-compliance with Clause 10.4 of the CBA, but reinstatement was not possible; monetary awards of severance, notice pay and compensation were granted instead
Having found an unlawful redundancy, the court considered reinstatement impracticable given the lapse of time and the financial grounds of the redundancy. It substituted the remedy of reinstatement with payment of three months' severance pay, three months' salary in lieu of notice, and three months' compensation for length of service, with leave dues to be computed.
Legal principles established
#- Employees engaged on back-to-back three-month renewable contracts continuously for more than three months are not temporary employees and cannot be treated as such under a CBA limiting temporary terms to three months
- Termination of employment on account of the employer's financial challenges constitutes redundancy
- A redundancy that does not comply with the procedure laid down in the applicable CBA is unlawful
Court orders
#- 1.Grievants to be paid 3 months basic salary as severance pay
- 2.Grievants to be paid 3 months basic salary in lieu of notice
- 3.Each grievant to be paid compensation of 3 months basic salary in view of length of service
- 4.Parties to embark on calculation of payments due to each employee, including any pending leave not taken
- 5.Respondent to pay the claimant Kshs 50,000/= as costs
- 6.Case to be mentioned on 29th May 2015 before the duty judge for parties to confirm compliance
- Jurisdiction invoked
- not stated in the judgment (Industrial Court jurisdiction over the trade dispute reported to the Minister for Labour)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Union Of National Research & Allied Institutes Staff Of Kenya (Unrisk) v Kenya Industrial Research & Development Institute (Kirdi) [2015] KEELRC 859 (KLR)", Case Analysis (2015). Notice of Motion dated 16th July 2009 (Memorandum of Claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/859/eng@2015-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.