Kenya Union of Sugar Plantation Allied Workers v Western Kenya Sugar Company Limited (Cause 14 of 2021) [2022] KEELRC 1284 (KLR)
The bottom line
#Kenyan casual workers converted to permanent employment are entitled to back-pay calculated using the collective bargaining agreement that applied at the time, not a later one.
What this practically means
#Executive summary
#Key legal issues
#Which CBA applies to the award period June 2013 to 30th April 2016
The CBA in existence during the periods in question applies; the 2015-2017 CBA does not apply retrospectively
The court agreed with the Claimant's submission that upon conversion of casual employment, the applicable CBA is the one in existence at the time. A CBA operates only during its valid period and does not operate retrospectively unless the parties agree otherwise. Therefore the tabulation must be based on the CBA(s) applicable to the relevant periods rather than the 1st May 2015 to 30th April 2017 CBA alone.
Exact dates of conversion from casual to term contracts for the 1st and 3rd grievants
Patrick Lusimba converted on 1st July 2013 and Wilson Sundwa on 1st June 2013, being their dates of engagement as casuals
Applying section 37(3) of the Employment Act, an employee who works continuously for two months or more from the date of employment as a casual is entitled to the terms and conditions he would have enjoyed had he not been employed as a casual. The court therefore fixed the conversion dates as the dates of engagement as casuals, as found under paragraphs 23 and 25 of the judgment.
Whether the judgment referenced ELRC Kisumu No. 258 of 2018 and held casual workers are union members by default
The court referred to Lady Justice Maureen Onyango's judgment in ELRC Kisumu Cause No. 110 of 2013, not 258 of 2018; the reference is self-explanatory
The Claimant pointed out that the case cited in the judgment was ELRC Kisumu Cause No. 110 of 2013 rather than 258 of 2018. The court confirmed that under paragraphs 26, 27 and 28 it had referred to the Onyango judgment in Cause No. 110 of 2013 and that the reference was self-explanatory, clarifying the citation error raised by the Respondent.
Legal principles established
#- A CBA is applicable only during its valid period and is not retrospective unless the parties agree
- Under section 37(3) of the Employment Act, an employee who works continuously for two months or more as a casual is entitled to the terms and conditions applicable had he not been employed as a casual, from the date of engagement
Court orders
#- 1.The applicable CBA is the one in existence during the periods in question
- 2.The exact date of conversion of Patrick Lusimba's casual engagement to employment is 1st July 2013
- 3.The exact date of conversion of Wilson Sundwa's casual engagement to employment is 1st June 2013
- 4.The court referred to ELRC Kisumu Cause No. 110 of 2013, not 258 of 2018, under paragraphs 26, 27 and 28 of the judgment
- 5.Parties directed to file agreed tabulation of award amounts within 7 days, failing which the court will adopt the Claimant's tabulation filed on 23rd May 2022 as final judgment
- 6.Mention on 26th July 2022 to confirm compliance and give date for delivery of partial judgment
- Jurisdiction invoked
- Original employment and labour relations jurisdiction; review/clarification of the court's own judgment of 5th May 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Sugar Plantation Allied Workers v Western Kenya Sugar Company Limited (Cause 14 of 2021) [2022] KEELRC 1284 (KLR)", Case Analysis (2022). ELRC Cause (Bungoma), judgment delivered 5th May 2022; ruling of 13th July 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1284/eng@2022-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.