Kenya Union of Sugar Plantation and Allied Workers v West Kenya Sugar Company Limited [2018] KEELRC 1408 (KLR)
The bottom line
#Kenya's Employment Court confirmed a union can enforce CBA rights for casual workers, but claims without documentary evidence will fail.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the union to represent casual and acting employees
The claimant has locus standi by virtue of the CBA, which contains clauses on casual employment and acting allowance negotiated with the respondent; the respondent is estopped from denying the union's mandate.
The CBA negotiated between the parties contained clause 28 on casual employment and clause 7 on acting allowance. The respondent having negotiated and agreed these clauses, and having even discussed conversion of casuals to fixed term contracts with the union, could not deny the union's right to enforce the CBA on behalf of casual employees. Reliance on BIFU v Standard Chartered Bank did not avail the respondent.
Employees who had overstayed in acting capacity
There is no real dispute; the respondent should confirm the three named employees once the claimant supplies the documents proving prolonged acting.
Both parties agreed all long-acting employees had been confirmed except three named by the claimant - Joseph Nengo, Nehemiah Okina and Stephen Ombui. The respondent admitted readiness to confirm them upon submission of relevant documents. Claims concerning other employees whose names were left out could not be entertained as the CBA was not amended to include them.
Casualization of labour
The issue is resolved; the respondent converted long serving casuals to fixed term contracts in line with clause 28 of the CBA.
The respondent submitted it had converted the employment of all long serving casuals, totalling 655 employees, to fixed term contracts by July 2016. This complied with clause 28 of the CBA which provides that casual employment shall be managed in accordance with the applicable law. The court found no dispute remained on this issue.
Compensation and terminal dues for casuals
The prayer failed for want of evidence; the burden of proof was not discharged.
Although the claimant prayed for compensation and terminal dues under Section 37(1)(b) of the Employment Act, no evidence was adduced, no tabulation was made in respect of any employee, and the issue was not addressed in the claimant's submissions. A prayer not supported by evidence cannot be granted.
Legal principles established
#- A trade union has locus standi to enforce a clause of its CBA relating to casual employment where the employer negotiated and agreed that clause, and is estopped from denying the union's right to represent the casual employees.
Court orders
#- 1.The respondent to confirm the three employees named (Joseph Nengo, Nehemiah Okina and Stephen Ombui) once the claimant supplies documents proving they had acted longer than the period provided for in the CBA
- 2.The prayer for compensation and terminal dues under Section 37(1)(b) dismissed for want of proof
- 3.The prayer for absorption of casual employees into permanent terms declared overtaken by events as the casuals had been converted into fixed term contracts
- 4.Orders accordingly
- Jurisdiction invoked
- Jurisdiction as the Industrial Court/Employment and Labour Relations Court over disputes on terms and conditions of service, including Section 37(4) of the Employment Act conferring power on the Industrial Court to vary terms of service of casual employees
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Sugar Plantation and Allied Workers v West Kenya Sugar Company Limited [2018] KEELRC 1408 (KLR)", Case Analysis (2018). not_stated_in_judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1408/eng@2018-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.