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ELRCDismissedCause (as stated in judgment; not specified)· [2022] KEELRC 4161 (KLR)

Kenya Union of Commercial Food & Allied Workers v Midal Group (K) Ltd (Employment and Labour Relations Cause 38 of 2021) [2022] KEELRC 4161 (KLR)

Employment and Labour Relations Court
20 September 2022
HWHellen Wasilwa
2,436 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that when fixed-term contracts simply expire, employees cannot claim unfair termination unless they prove they once held permanent jobs.

What this practically means

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Executive summary

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The claimant union sued the respondent, a labour outsourcing supplier engaged by Woolmatt supermarket limited, on behalf of six grievants allegedly victimized and terminated after joining the union between April and June 2018. The union alleged that when it sent check-off forms, the respondent forced union members to sign three-month contracts and terminated their services on October 11, 2018 when the contracts lapsed. It sought declarations of unfairness, reinstatement, or in the alternative monetary reliefs including notice pay, leave, underpayment and twelve months' compensation, plus certificates of service and costs. The respondent denied the allegations, asserting the grievants were general workers on probation and fixed-term contracts that expired by effluxion of time on October 1, 2018, that contracts were signed voluntarily, that underpayment was unproven, and that the 1st grievant's claim was res judicata given ELRC Cause 227 of 2018. The cause proceeded by written submissions. The court found no evidence that the grievants had been employed on permanent and pensionable terms before the check-off forms were submitted, and held that their employment ended by expiration of short-term contracts which were not renewed. Unfair termination and victimization were held not established, and the claim was dismissed with no order of costs. Judgment delivered by Hon. Lady Justice Hellen Wasilwa on September 20, 2022.

Key legal issues

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01

Whether termination was unfair or merely effluxion of a fixed-term contract

Holding

The grievants' employment ended by expiry of their contracts; unfair termination and victimization were not established

Reasoning

The court found no evidence the grievants were employed on permanent and pensionable terms before joining the union. The evidence showed they were on short-term contracts which were not renewed upon expiry. Absent proof of permanent terms or coercion, the claim of unfair termination and victimization could not stand.

p. 6
02

Whether the victimization claim was proved

Holding

The claim of victimization for union membership was not established

Reasoning

The court noted the omission in the claimant's case: no evidence of the grievants' employment status before the check-off forms were submitted. Without proof of prior permanent terms, the allegation that terms were changed to punish union membership could not be sustained.

p. 6

Legal principles established

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  • Fixed-term employment that expires by effluxion of time without renewal ends by operation of the contract, and a claim of unfair termination based on such expiry fails absent proof of prior permanent terms or victimization.

Court orders

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  1. 1.The claim by the grievants for unfair termination, victimization etc. is found not established and cannot stand
  2. 2.The claim is dismissed
  3. 3.No order as to costs

Authorities

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Legislation

  • Employment Actsections 49 and 50
  • Evidence Actsection 109

Cases cited (7)

  • Anthony Mkala Chitavi v Malindi Waters and Sewerage Company Limited
    (2013) eKLR
  • Paul Mumo Kitavi v ACME Containers Limited
    (2019) eKLR
  • Registered Trustees of the Presbyterian Church of East Africa & another v Ruth Gathoni Ngotho-Kariuki
    (2017) eKLR
  • Teresa Carlo Omondi v Transparency International Kenya
    (2017) eKLR
  • Johnstone Luvisia v Allpack Industries Limited
    (2019) eKLR
  • Kenya Union of Commercial Food & Allied Workers v Mitra Enterprises Limited & another
    (2021) eKLR
  • Charles Ogola & 2 others v Mansion Hart Kenya Limited
    (2019) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (implied by the claim under sections 49 and 50 of the Employment Act); not expressly stated

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 v Midal Group (K) Ltd (Employment and Labour Relations Cause 38 of 2021) [2022] KEELRC 4161 (KLR)", Case Analysis (2022). Cause (as stated in judgment; not specified). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4161/eng@2022-09-20

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