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ELRCDismissedNot stated in the judgment (Notice of Motion dated July 20, 2020)· [2023] KEELRC 1507 (KLR)

Kenya Plantation & Agricultural Workers Union v Big Flower Limited (Employment and Labour Relations Cause 24 of 2020) [2023] KEELRC 1507 (KLR)

Employment and Labour Relations Court
13 June 2023
HWHellen Wasilwa
2,099 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a union's bid to force a flower farm to sign a recognition agreement because the union couldn't prove its members actually worked for the farm.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court by Hellen Wasilwa, J, delivered on 13 June 2023, determined the Claimant Union's Notice of Motion dated July 20, 2020, brought under Articles 36 and 41 of the Constitution, Section 12 of the Employment and Labour Relations Court Act and Sections 4 and 48 of the Labour Relations Act. The Union sought orders compelling the Respondent, a cut-flower company in Timau, Meru County, to deduct and remit Union dues from 299 employees who had signed check-off forms, to sign a recognition agreement, and to revert to paying the employees monthly salary, alleging victimization of members for joining the Union. The Respondent opposed the application through its Human Resource Officer's affidavit, contending that the employees were outsourced from a third-party manpower provider, that no employer-employee relationship existed between it and the workers, and that it could not lawfully deduct dues or sign a recognition agreement. Both parties filed written submissions, the Union relying on authority that recognition is mandatory once a simple majority is recruited, and the Respondent relying on the tests for distinguishing a contract of service from a contract for services and on the maxim that equity does nothing in vain. The court held that the onus of proving an employment relationship lay with the Union and that the check-off forms alone, without employment letters, appointment letters or payslips, were insufficient. The application was accordingly dismissed with no order of costs.

Key legal issues

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01

Whether an employment relationship existed between the recruited members and the Respondent

Holding

The claim failed because the Union did not discharge its burden of proving the employment relationship

Reasoning

The Respondent asserted the workers were outsourced from a third-party manpower provider. The court held the Union bore the onus of proving the employment relationship. The only evidence adduced was check-off forms (Form S); there were no employment letters, appointment letters or payslips linking the members to the Respondent. The evidence therefore fell short and the claim could not stand.

p. 5
02

Whether the Respondent could be compelled to sign a recognition agreement and deduct and remit Union dues

Holding

No, because the precondition of an employment relationship under Sections 48 and 54 of the Labour Relations Act was not established

Reasoning

The Applicant argued it had recruited a simple majority (299 employees) and relied on authority holding recognition mandatory under Section 54(1). The Respondent contended the employees were outsourced and that no recognition or dues deduction could be ordered absent an employment relationship. The court accepted that the burden lay on the Union and, finding the relationship unproven, dismissed the claim without costs.

p. 5

Legal principles established

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  • The onus of proving an employment relationship in a claim for recognition and check-off orders lies with the Union
  • Check-off forms alone are insufficient to establish an employment relationship without documents such as employment letters or payslips

Court orders

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  1. 1.Dismissal of the Claimant's Notice of Motion dated July 20, 2020
  2. 2.No order of costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 36, 37, 41
  • Employment and Labour Relations Court ActSection 12
  • Labour Relations ActSections 2, 4, 46(c), 48, 50(10), 54, 54(1), 19(1)(g) and (i)

Cases cited (6)

  • Kenya National Union of Nurses v Friends Lugulu Mission Hospital
    [2021] eKLR
  • Kenya Union of Domestic Hotels, Education Institution, Hospital and Allied Workers v Lukhokho Secondary School
    [2016] eKLR
  • Maurice Oduor Okech v Chequered Flag Limited
    [2013] eKLR
  • Everest Aviation Limited v Kenya Revenue Authority
    [2013] eKLR
  • Kenya Petroleum Oil Workers Union v Giefcon Limited & Another
    [2015] eKLR
  • Kalya Soi Farmers' Cooperative Society v Paul Kirui & Another
    [2013] eKLR
Jurisdiction invoked
Articles 36 and 41 of the Constitution; Section 12 of the Employment and Labour Relations Court Act; Sections 4 and 48 of the Labour Relations 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 Plantation & Agricultural Workers Union v Big Flower Limited (Employment and Labour Relations Cause 24 of 2020) [2023] KEELRC 1507 (KLR)", Case Analysis (2023). Not stated in the judgment (Notice of Motion dated July 20, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1507/eng@2023-06-13

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