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ELRCDismissedNakuru ELRC No.111 of 2018 (application dated 4th November, 2019)· [2020] KEELRC 1892 (KLR)

Kenya Plantation and Agricultural Workers Union v James Finleys (Kenya) Limited (Finleys Flowers) [2020] KEELRC 1892 (KLR)

Employment and Labour Relations Court
23 January 2020
1,066 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court allowed Finlays to close and declare redundancies because the employer had properly notified the union and labour office as the law requires.

What this practically means

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Executive summary

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The claimant union, by application dated 4th November 2019, sought to stay and set aside the respondent's letter of 18th October 2019 announcing the final closure of Finlays Flowers (K) Limited on 25th December 2019, and a declaration that all employees declared redundant vide letters dated 25th April 2018 and 18th October 2019 are entitled to the outcome of Civil Appeal No.47 of 2017 concerning the applicable CBA. The union feared terminal dues would be computed on the 2012-2013 CBA rather than the 2014-2015 CBA under litigation. The respondent opposed via grounds of opposition and a replying affidavit of its human resource director, Daniel Kirui, arguing the application sought to pre-empt the pending appeal, that no injunctive principles were met, and that closure was necessitated by an uneconomical business environment. The respondent noted an earlier ruling of 4th June 2018 dismissing a similar application for compliance with section 40 of the Employment Act, and that the suit had been compromised. The court held the 18th October 2019 notice was interlinked with the earlier April 2018 notice and complied with section 40(1), having been issued to the union and the Kericho labour officer. It declined to address the pending appeal's outcome. The application was dismissed with costs in the cause.

Key legal issues

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01

Compliance with section 40 of the Employment Act, 2007 in the redundancy/closure notice of 18th October, 2019

Holding

The notice of 18th October, 2019 was interlinked with the earlier notice of 25th April, 2018 and issued in tandem with section 40(1), the labour officer at Kericho having been notified; hence the application fails

Reasoning

The court read the 18th October 2019 letter as a continuation of the phased closure announced on 25th April 2018, which was the subject of prior litigation dismissed for want of merit. The notice was issued to the claimant union and to the labour officer at Kericho as required by section 40(1). Since the statutory mandatory requirements were met, the substantive orders sought could not issue, and the court declined to go into the merits of the main claim.

p. 2
02

Entitlement of redundantly declared employees to the outcome of the pending Civil Appeal No.47 of 2017 on the CBA

Holding

The court declined to make any declaration, holding the outcome of the pending appeal is not for this court to address and the parties should be guided by the Court of Appeal's determination on the merits

Reasoning

The claimant sought a declaration pegging terminal dues to the outcome of a pending appeal over the applicable CBA. The court held that issues before the appellate court should be addressed on the merits there, and that issuing such a declaration would pre-empt the appeal. No order was made on this head.

p. 2

Legal principles established

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  • Before effecting a redundancy, an employer must notify the trade union representing the employees and the labour officer responsible for the area, per section 40(1) of the Employment Act, 2007
  • Injunctive or protective orders cannot issue where the employer has complied with the mandatory statutory redundancy notice provisions

Court orders

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  1. 1.Orders sought in the application dated 4th November, 2019 shall not issue
  2. 2.Costs in the cause

Authorities

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Legislation

  • Employment Act, 2007section 40(1)
  • Employment Act, 2007section 40
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (section 40 in issue)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Plantation and Agricultural Workers Union v James Finleys (Kenya) Limited (Finleys Flowers) [2020] KEELRC 1892 (KLR)", Case Analysis (2020). Nakuru ELRC No.111 of 2018 (application dated 4th November, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1892/eng@2020-01-23

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