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ELRCDismissedMotion dated 27th January 2020 (ELRC, Eldoret)· [2021] KEELRC 2318 (KLR)

Kenya Building Construction /Timber and Furniture Industries Employees Union v Raiply Woods (K) & another [2021] KEELRC 2318 (KLR)

Employment and Labour Relations Court
12 January 2021
1,864 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to stop Raiply Wood's redundancies, ruling that a union's failure-to-notify complaint can be fully resolved at trial, not by urgent injunction.

What this practically means

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Executive summary

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The Claimant Union moved the Court by a Notice of Motion dated 27th January 2020 seeking interlocutory orders restraining the 1st respondent, Raiply Wood (K) Ltd, from unlawfully terminating its members' employment in disguise of redundancy while outsourcing cheap labour through the 3rd respondent. The Union, through its Secretary General George Moseti Nyangweso, alleged breach of the CBA of 30th June 1989 and Section 40 of the Employment Act, contending that redundancies beyond the initially agreed 300 employees were effected from 1st January 2020 without notifying the Union or the County Labour Officer. The respondent, through its Human Resource Manager Joachim Muli Kimoja, countered that terminations were genuine redundancies occasioned by the government moratorium on logging in public and community forests, effected with stakeholder involvement and in line with clause 17 of the CBA. The court found the initial redundancy of about 300 employees complied with Section 40 as to reasons and extent. However, it acknowledged no evidence showed notification of the extent of the subsequent redundancies affecting a further 928 employees. The court nonetheless held this omission alone could not justify interlocutory relief since it flowed from government forest conservation policy, and any liability could be recompensed at trial. Concluding the Claimant had not demonstrated a prima facie case, the court declined interlocutory relief and directed the suit to proceed to full trial on 12th January 2021.

Key legal issues

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01

Whether the initial redundancy of about 300 employees complied with Section 40 of the Employment Act

Holding

It did, insofar as reasons and extent of the redundancy were concerned, since the union was notified by letter dated 11th June 2018

Reasoning

Section 40(1)(a) requires notification of the union and the local Labour Officer of the reasons for and extent of the intended redundancy not less than one month before termination. The respondent's letter of 11th June 2018 informed the Claimant of the moratorium on logging, the financial constraints, and that the redundancy would affect around 300 employees across all departments, thereby satisfying the statutory requirements on reasons and extent.

p. 3
02

Whether the subsequent redundancies affecting a further 928 employees were properly notified

Holding

No evidence was placed before the court showing the Claimant and local Labour Officer were notified of the extent of the subsequent redundancies

Reasoning

The court acknowledged the extension of the logging moratorium on 21st November 2019 occasioned the subsequent redundancies, but held that no material was placed before it showing notification of the extent of those redundancies to the Claimant and the Labour Officer as required by Section 40. However, this omission did not justify interlocutory relief since it was attributable to government policy, with the legality and consequences left for trial.

p. 3
03

Whether a prima facie case was demonstrated for an interlocutory injunction

Holding

No prima facie case warranting interlocutory relief was demonstrated

Reasoning

The applicant alleged the terminations were disguised redundancy coupled with outsourcing of cheap labour in breach of the CBA and Section 40. The court found the initial redundancy compliant and the omission on subsequent notification compensable at trial; thus the applicant failed to demonstrate a prima facie case warranting the grant of an interlocutory injunction.

p. 3

Legal principles established

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  • Non-compliance with notification requirements under Section 40 of the Employment Act as to extent of subsequent redundancies does not by itself justify an interlocutory injunction where the redundancy was occasioned by government policy; the remedy lies at trial

Court orders

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  1. 1.The Court will not grant any interlocutory relief and hereby directs that the suit proceeds to full trial
  2. 2.It is so ordered

Authorities

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Legislation

  • Employment ActSection 40(1)(a)
  • Employment and Labour Relations Act 2007Section 40 (as cited in supporting affidavit)
Jurisdiction invoked
First-instance interlocutory jurisdiction of the Employment and Labour Relations Court under the Employment Act

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 Building Construction /Timber and Furniture Industries Employees Union v Raiply Woods (K) & another [2021] KEELRC 2318 (KLR)", Case Analysis (2021). Motion dated 27th January 2020 (ELRC, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2318/eng@2021-01-12

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