Kenya Engineering Workers Union v Ashut Engineers Limited (Plastic Division) [2021] KEELRC 236 (KLR)
The bottom line
#Kenya's Employment Court lifted orders blocking a factory redundancy, ruling the dispute was separate from an ongoing union case and couldn't bind a new employer.
What this practically means
#Executive summary
#Key legal issues
#Whether the orders of 8th December, 2020 should be reviewed, varied or set aside
Yes; they are set aside in their entirety on the basis of new discovery of the admitted defective redundancy notice and a new cause of action
The court has power under section 16 of the Employment and Labour Relations Court Act, 2011 read with Rule 33 of the ELRC (Procedure) Rules, 2016 to review orders where there is new discovery, mistake on the record, need for clarification, or good cause. The respondent admitted issuing a defective redundancy notice addressed to the Minister rather than the claimant, contrary to section 40 of the Employment Act. The redundancy matter constitutes a new and separate cause of action from the CBA review suit, warranting setting aside of the interim orders.
Whether the court can direct Ashut Plastics Limited to issue fresh contracts on similar terms
No; the court cannot bind a separate legal entity to contract with the respondent's employees
Ashut Plastics Limited is a separate and different legal person from the respondent. Parties remain free to contract. Directing a third party to issue new contracts on similar terms would be a serious negation of fair labour practices. The redundancy, if re-issued in compliance with section 40 of the Employment Act, can be addressed at the shop floor level between the respondent and the union.
Whether the redundancy issue forms part of the subsisting CBA review suit
No; it is a new cause of action that should form a new and separate suit
The suit filed on 15th May 2018 concerned the respondent's refusal to review the CBA, with twelve issues outlined. The notice of intended redundancy affecting 801 employees, issued in error, is foundationally different and separate. While the claimant is correct that the CPMU report dated 21st September 2020 must be addressed as directed on 18th December 2019, the redundancy dispute should be filed as a new and separate suit.
Legal principles established
#- A redundancy notice issued in error may be corrected and fresh notice issued in compliance with section 40 of the Employment Act; the court will not compel a third-party employer to contract with the employees
- A redundancy affecting 801 employees is foundationally different from a CBA review dispute and should be filed as a new and separate suit
Court orders
#- 1.Orders issued on 8th December, 2020 set aside in their entirety
- 2.Application dated 15th March, 2021 allowed
- 3.Application dated 8th December, 2020 and the pending CPMU report to be mentioned on a date allocated at the registry
- 4.Each party to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court Act, 2011 (section 16) read with Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Engineering Workers Union v Ashut Engineers Limited (Plastic Division) [2021] KEELRC 236 (KLR)", Case Analysis (2021). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/236/eng@2021-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.