Kenya Union of Sugar Plantation and Allied Workers v West Kenya Sugar Company Limited (Cause 14 of 2021) [2022] KEELRC 1394 (KLR)
The bottom line
#A Kenyan employment court confirmed that casual workers converted to permanent terms count their benefits from their original casual start dates, using the wage agreement in force at that time.
What this practically means
#Executive summary
#Key legal issues
#Which CBA governs computation of the award for the period June 2013 to 30th April 2016
The CBA applicable is the one in existence during the periods in question, not the 2015-2017 CBA.
The Claimant submitted that on conversion of casual employment, the applicable CBA is the one in existence at that time. The Court agreed, holding that a CBA applies during its valid period and operates retrospectively only if the parties agree. Therefore the awards for underpayment, annual leave and housing allowance for the earlier period must be computed under the CBA then in force.
Dates of conversion from casual to term contracts for the 1st and 3rd grievants
Conversion dates are the dates of engagement as casuals: 1st July 2013 for Patrick Lusimba and 1st June 2013 for Wilson Sundwa.
Applying section 37(3) of the Employment Act, which entitles a casual employee working continuously for two months or more to full statutory terms from the date of employment as a casual, the court fixed the conversion dates as the dates of casual engagement, consistent with its earlier findings under paragraphs 23 and 25 of the judgment.
Correct citation of the precedent relied on in paragraphs 26, 27 and 28 of the judgment
The court had referred to Lady Justice Maureen Onyango's judgment in ELRC Kisumu Cause No. 110 of 2013, not No. 258 of 2018.
The Respondent sought clarification whether the judgment interpreted Onyango J's decision in ELRC Kisumu No. 258 of 2018 as holding that casual workers are union members by default. The court clarified that the case actually cited was ELRC Kisumu Cause No. 110 of 2013 and that the reference was self-explanatory, correcting the erroneous case number.
Legal principles established
#- A Collective Bargaining Agreement applies during its valid period and is not retrospective unless the parties agree otherwise.
- Under section 37(3) of the Employment Act, a casual employee who works continuously for two months or more is entitled to the terms and conditions of service he would have enjoyed had he not been employed as a casual, from the date of engagement as a casual.
Court orders
#- 1.Clarified that the applicable CBA is the one in existence during the periods in question, not the 2015-2017 CBA retrospectively
- 2.Determined that Patrick Lusimba's casual engagement converted to employment on 1st July 2013
- 3.Determined that Wilson Sundwa's casual engagement converted to employment on 1st June 2013
- 4.Clarified that the judgment referenced ELRC Kisumu Cause No. 110 of 2013 and not No. 258 of 2018
- 5.Directed the parties to file agreed tabulation of award amounts, or separate tabulations if they do not agree, within 7 days, failing which the court will adopt the Claimant's tabulation filed on 23rd May 2022 as final judgment
- 6.Scheduled mention on 26th July 2022 to confirm compliance and give a date for delivery of the partial judgment on payable amounts
- Jurisdiction invoked
- Continuation of first-instance Employment and Labour Relations Court claim; ruling on clarification of judgment delivered 5th May 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Sugar Plantation and Allied Workers v West Kenya Sugar Company Limited (Cause 14 of 2021) [2022] KEELRC 1394 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1394/eng@2022-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.