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ELRCPartially AllowedCause No E490 of 2020· [2021] KEELRC 2213 (KLR)

Kenya Union of Commercial Food & Allied Workers & London Distillers (K) Limited [2021] KEELRC 2213 (KLR)

Employment and Labour Relations Court
5 February 2021
4,605 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed employers must personally notify unions and labour officers before redundancies—a notice board circular is not enough.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Nairobi, per Maureen Onyango J, determined two competing interlocutory applications arising from London Distillers (K) Limited's August 2020 redundancies and retirements affecting unionisable employees. The claimant union, which had secured ex parte orders on 4th September 2020 suspending the redundancy and retirement letters, sought confirmation of those orders pending trial. The Respondent sought to vacate them, arguing it had complied with Section 40 of the Employment Act, that the orders were procured by misrepresentation, that the redundancy was a COVID-19-driven business measure, and that the dispute over the Recognition Agreement was pending before the National Labour Board. The court framed two issues: whether the ex parte orders should be vacated, and whether the claimant's application was merited. Applying Section 40(1)(a) and (b) of the Employment Act and clauses 22, 23 and 6 of the parties' CBA, the court held there was no notification to the union or affected employees, that a notice board circular was insufficient, that no notices went to local labour officers, and that the Respondent breached its own CBA. However, the interim orders could not reverse the separation of the 15 employees already retired or declared redundant before 4th September 2020, reinstatement being a matter for the full hearing. The court suspended the 12th August 2020 notice, maintained status quo as at 31st August 2020, restrained the Respondent from declaring the remaining 394 employees redundant, dismissed the Respondent's application, and ordered costs of both applications in the cause, directing the Respondent to file its defence within 14 days.

Key legal issues

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01

Whether the ex parte orders of 4th September 2020 should be vacated

Holding

The court declined to vacate them; it found the redundancy process did not comply with Section 40 of the Employment Act or the CBA, so the orders were properly issued in respect of employees still in employment.

Reasoning

The court examined Section 40(1) of the Employment Act, which requires one month's notice to the union and the local labour officer for unionised employees, and clauses 22, 23 and 6 of the CBA. It found no notification was given to the claimant union or the affected employees; the notice board circular did not suffice; no notice was issued to county labour officers where affected employees worked; and the Respondent breached its own CBA. The ex parte orders therefore remained justified for the 394 employees still in employment, and the Respondent's application to set aside was dismissed.

p. 8
02

Whether the claimant's application for interim orders was merited

Holding

Partially merited: the 12th August 2020 notice was suspended, status quo as at 31st August 2020 maintained, and the Respondent restrained from declaring the remaining 394 employees redundant, but the orders could not restore the 15 employees already separated.

Reasoning

The court noted that by 4th September 2020 ten employees had already been declared redundant and five retired, and no reinstatement prayers were before it in the application. It therefore confined the interim relief prospectively, protecting only the 394 employees still in employment, leaving any claim for reinstatement of the separated employees to the full hearing of the claim.

Legal principles established

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  • A notice posted on a notice board is not sufficient notification to the union or affected employees under Section 40(1)(a) and (b) of the Employment Act.
  • Redundancy of unionised employees requires notification to the union and the local labour officer at least one month prior, stating reasons, extent and selection criteria.

Court orders

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  1. 1.The notice dated 12th August 2020 is suspended pending hearing and determination of the claim herein.
  2. 2.Status quo as at 31st August 2020 be and is hereby maintained pending hearing and determination of the claim herein.
  3. 3.The Respondent is hereby restrained for declaring the remaining 394 employs redundant pending hearing and determination of the claim herein.
  4. 4.The application dated 9th September 2020 filed by Respondent is dismissed.
  5. 5.Costs of both applications shall be in the cause.
  6. 6.The Respondent is directed to file its defence to the claim within 14 days, thereafter parties to fix a hearing date for the claim on priority basis.

Authorities

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Legislation

  • Employment ActSection 40(1) including 40(1)(a)-(g)
  • Labour Relations Act, 2007Section 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d); Article 48

Cases cited (1)

  • Thomas De La Rue (K) Ltd v David Opondo Omutelema
    (2013) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (the judgment does not expressly cite a founding provision for jurisdiction)

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 Union of Commercial Food & Allied Workers & London Distillers (K) Limited [2021] KEELRC 2213 (KLR)", Case Analysis (2021). Cause No E490 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2213/eng@2021-02-05

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