Benard Ochieng Oduor v Trade Winds Aviation Services Limited & another [2020] KEELRC 152 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the 2nd Respondent, to whom the Claimant's services were outsourced, could be liable for his termination by the 1st Respondent
The employment relationship existed only with the 1st Respondent; the 2nd Respondent is not a necessary party and no claim for termination can stand against it
The contract of employment was between the Claimant and the 1st Respondent, who paid his salary and terminated his services. Working at the 2nd Respondent's premises under outsourced services did not create an employment relationship. Relying on Abyssinia Iron & Steel, outsourced employees remain under the management and control of their direct employer. The 2nd Respondent's refusal to take the Claimant back did not transfer employer responsibility to it, so the objection was allowed and the 2nd Respondent struck out.
Whether the preliminary objection met the Mukisa Biscuits test of a pure point of law
The court found the objection had merit; the dispute turned on whether an employment relationship existed, a question the court resolved on the pleaded facts and the definition of employer under the Employment Act
The court adopted the Mukisa Biscuits definition that a preliminary objection raises a pure point of law argued on assumed facts, and cannot be raised if facts must be ascertained. The Claimant argued the objection required evidence, but the court proceeded to determine the relationship question from the pleadings and statutory definition, agreeing with the 2nd Respondent that no employment relationship existed on the facts as pleaded.
Legal principles established
#- A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct
- Outsourced employees remain employees of their direct employer (the labour supplier) and not of the client to whose premises they are seconded
Court orders
#- 1.The preliminary objection is allowed
- 2.The 2nd Respondent is removed from the proceedings
- 3.The case will proceed with the 1st Respondent as the only Respondent
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benard Ochieng Oduor v Trade Winds Aviation Services Limited & another [2020] KEELRC 152 (KLR)", Case Analysis (2020). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/152/eng@2020-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.