Kenya Plantation & Agricultural Workers Union v James Finlays (K) Limited (Finlay Flowers) [2018] KEELRC 1182 (KLR)
The bottom line
#A Kenyan court let a flower farm's phased redundancy proceed, ruling that a proper initial notice under section 40 of the Employment Act cannot be stopped before trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the notice dated 25th April, 2018 complied with section 40(1) of the Employment Act
The notice was a general notice of intent to terminate on account of redundancy, satisfying section 40(1)(a), and the court should not interfere at this stage
Relying on Thomas De La Rue, Kenya Airways and Barclays Bank, the court held that the initial notice need only notify the union and labour officer of the reasons and extent of the intended redundancy at least a month before termination. The notice dated 25th April 2018 set out reasons, phases and period, commencing terminations on 31st May 2018. Whether the redundancy is justified is a matter for full trial, not affidavit evidence.
Whether the notice contravened section 54 of the LRA by purporting to terminate the Recognition Agreement
Termination of a Recognition Agreement is a substantive issue that cannot be determined on a Notice of Motion and should not be conflated with the redundancy notices
The court found that determining the fate of the Recognition Agreement would require examining the agreement document and the parties' intentions, which are weighty matters inappropriate for interlocutory determination and should not be conflated with the notices dated 25th April 2018.
Whether the claimant's failure to exhaust clause 3(c) of the Recognition Agreement or sections 62 and 74 LRA rendered the application an abuse of process
Those provisions are good measures in the law but do not remove the court's original jurisdiction over employment matters
The court declined to find the application incompetent on exhaustion grounds, holding that the dispute-resolution mechanisms under the LRA and the Recognition Agreement do not oust the constitutional jurisdiction of the Employment and Labour Relations Court.
Legal principles established
#- Under section 40(1) of the Employment Act, an employer contemplating redundancy must first issue a general notice of intent to the union and labour officer, which elicits consultation before individual notices issue
- At the interlocutory stage the court only requires demonstration of the requisite notices under section 40(1); interrogation of the rationale and justification of the redundancy cannot be done through affidavit evidence
- Sections 62 and 74 of the LRA do not oust the court's original jurisdiction over employment and labour relations matters
Court orders
#- 1.The application dated 30th April, 2018 is declined
- 2.The notice issued and dated 25th April, 2018 shall run its course
- 3.The interim orders issued are vacated
- 4.Costs in the cause
- Jurisdiction invoked
- Original jurisdiction conferred under the Constitution to address all matters employment and labour relations
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Plantation & Agricultural Workers Union v James Finlays (K) Limited (Finlay Flowers) [2018] KEELRC 1182 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1182/eng@2018-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.