Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in judgment· [2017] KEELRC 1935 (KLR)

Kenya Shoe & Leather Workers Union v Bata Shoe Co. (K) Limited [2017] KEELRC 1935 (KLR)

Employment and Labour Relations Court
20 January 2017
MNMatheus Nderi Nduma
1,124 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan employment court ruled that once a CBA covers unionisable employees, employers cannot keep them on fixed term contracts unless the CBA itself allows it.

What this practically means

#

Executive summary

#
This first-instance decision of the Employment and Labour Relations Court concerned a claim by a union (the claimant), filed on 21st February 2014 after conciliation before Mr. Boaz O. Musande of the Kiambu Labour office failed, seeking conversion of 169 grievants employed on fixed term contracts to permanent and pensionable terms. The claimant relied on Clause 4 of a registered CBA (RCA No. 193/2011) providing a probationary period not exceeding four weeks. The respondent, whose business has seasonal labour demands (school shoes and gumboot production peaks), admitted employing staff on both fixed term and permanent and pensionable terms and argued that fixed term contracts are lawful, competitively remunerated, and commercially necessary, and that conversion of all staff would be financially crippling. The court framed two issues: the proper interpretation of Clause 4 of the CBA, and whether the respondent had valid justification for fixed term employment. Holding that Clause 3 extends the CBA to all unionisable employees and that Section 59 of the Labour Relations Act incorporates CBA terms into every covered employee's contract, the court found the CBA silent on fixed term employment and therefore concluded that unionisable employees must serve at most four weeks' probation and thereafter be converted to permanent and pensionable status. Seasonal business demands were held to be no justification for breaching the CBA. The grievants still in employment and unionisable were ordered converted to permanent and pensionable terms, with no order as to costs. Judgment delivered at Nairobi on 20th January 2017 by Matheus Nderi Nduma, Principal Judge.

Key legal issues

#
01

Interpretation of Clause 4 of the CBA

Holding

Clause 4, read with Clause 3, applies to all unionisable employees; the CBA contemplates only probation of up to four weeks and is silent on fixed term contracts, so unionisable employees are to be employed on probation then converted to permanent and pensionable terms.

Reasoning

Clause 4 provides a probationary period not exceeding four weeks but does not state whether it applies to permanent or fixed term employees. Clause 3 covers all unionisable employees, and Section 59 of the Labour Relations Act binds all such employees and incorporates CBA terms into their contracts. Since the CBA nowhere contemplates fixed term employment, fixed term contracting of unionisable employees is not contemplated and contravenes the CBA.

p. 3
02

Whether seasonal labour demands justify fixed term contracts

Holding

No. The respondent's seasonal business demands do not justify employing unionisable employees on fixed term contracts contrary to the CBA.

Reasoning

The respondent pleaded that seasonal upsurges in demand (back-to-school and rainy season) necessitated fixed term uptake of labour, and that permanent conversion would be financially crippling. The court held that once the CBA is in force, employing a unionisable employee on a fixed term contract breaches its terms, and business convenience is not a justification absent an express contractual term permitting it.

p. 3

Legal principles established

#
  • The terms and conditions of a CBA are incorporated into the employment contracts of all employees covered by it, and any contractual term inconsistent with the CBA is unenforceable
  • An employer cannot justify breach of a CBA or contract on business convenience unless the justification is an express term of the contract

Court orders

#
  1. 1.The grievants who are still in employment of the respondent, provided they are unionisable, must be converted from fixed term contracts to permanent and pensionable terms
  2. 2.No order as to costs

Authorities

#

Legislation

  • Labour Relations ActSection 62(1)
  • Labour Relations ActSections 69(a) and 73(1)
  • Labour Relations ActSection 59(1) and (3)
Jurisdiction invoked
Jurisdiction arising under the Labour Relations Act No. 14 of 2007 after issuance of a certificate of unresolved dispute under Sections 69(a) and 73(1); dispute previously referred to the Minister under Section 62(1)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Kenya Shoe & Leather Workers Union v Bata Shoe Co. (K) Limited [2017] KEELRC 1935 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1935/eng@2017-01-20

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