Casual workers cannot enjoy constitutional protection of public officers

Kenya County Government Workers’ Union v County Government of Nyeri & another

Petition 10 of 2015

Employment and Labour Relations Court Of Kenya at Nyeri

B. Ongaya J

December 11, 2015

Reported by Kipkemoi Sang

Brief facts

The Respondents had engaged 238 employees being members of the Petitioner. The said employees were engaged in duties of a permanent nature which they had performed for a long time on permanent basis since their respective dates of initial engagement. The Respondent had failed to heed to their demands to place them on permanent terms and conditions of service and had threatened to replace employees in the same positions to perform the same or similar work as the Petitioner’s members

The Petitioner’s members contended that they were not casual employees within the meaning of the Employment Act, 2007 alleging that they had been employed for longer periods than 24 hours at times and some had served for over 15 years without a break and were paid at the end of each month and not on a daily basis as was the case in casual employment.

The Petitioner’s members further alleged that they had performed work which could not reasonably be expected to be completed within a period or a number of working days amounting in aggregate to the equivalent of three months or more and as such were entitled to permanent terms of service.

The Petitioner moved the court alleging violation of various fundamental rights and freedoms including inter alia the right to inherent human dignity especially in view of the values and principles of public service, on behalf of its members, right to fair labour practices comprising of, reasonable working conditions including permanent terms and conditions of service as protected by law.

The Respondent apposed the petition and alleged that the Petition was an abuse of court process since it was sub judice Cause 31 of 2013 that was pending in Court between the Respondent and the Respondent’s employee

The Petitioner therefore sought an injunction against termination or dismissal of its members from their employment without following the law and their terms and conditions of employment.

Issues

1. Whether the Petition was sub judice  Cause 31 of 2013
2. Whether the Petitioner had established its case and  was therefore entitled to the remedies prayed for
3. What was or amounted to the right to fair labour practices?

Constitutional Law- fundamental rights and freedoms-labour relations-right to fair labour practices- protection of public service-what was or amounted to the right to fair labour practices?-Constitution of Kenya, 2010, article 41

Labour Law-labour practice- general provision of contract of service- casual employment- constitutional protection of casual employees vis public offices-what was or amounted to the right to fair labour practices-Constitution of Kenya, 2010, article 236; Employment Act, 2007 sections 9 and 41

Civil practice and Procedure-principle of sub-judice- elements of sub-judice under civil procedure-litigation and re-litigation- whether the Petitioner had established its case and  was therefore entitled to the remedies prayed for-whether the petition was sub judice Cause 31 of 2013, Civil Procedure Act, (cap 21), section 6

Constitution of Kenya, 2010

Article 41-Labour relations

(1) Every person has the right to fair labour practices.

(2) Every worker has the right—

(a) to fair remuneration;

(b) to reasonable working conditions;

(c) to form, join or participate in the activities and programmes of a trade union; and

(d) to go on strike.

(3) Every employer has the right—

(e) to form and join an employers organisation; and

(f) to participate in the activities and programmes of an employers organisation.

(4) Every trade union and every employers’ organisation has the right—

(a) to determine its own administration, programmes and activities;

(b) to organise; and

(c) to form and join a federation.

(5) Every trade union, employers’ organisation and employer has the right to engage in collective bargaining.

Article 236-Protection of public officers

A public officer shall not be—

1. victimised or discriminated against for having performed the functions of office in accordance with this Constitution or any other law; or
2. dismissed, removed from office, demoted in rank or otherwise subjected to disciplinary action without due process of law.

Employment Act 2007

Section 9-General provision of contract of service

1. A contract of service—

1. for a period or a number of working days which amount in the aggregate to the equivalent, of three months or more; or
2. which provides for the performance of any specified work which could not reasonably be expected to be completed within a period or a number of working days amounting in the aggregate to the equivalent of three months, shall be in writing.

2. An employer who is a party to a written contract of service shall be responsible for causing the contract to be drawn up stating particulars of employment and that the contract is consented to by the employee in accordance with subsection (3).
3. For the purpose of signifying his consent to a written contract of service an employee may—

1. sign his name thereon; or
2. imprint thereon an impression of his thumb or one of his fingers in the presence of a person other than his employer.

4. Where an employee is illiterate or cannot understand the language in which the contract is written, or the provisions of the contract of service, the employer shall have the contract explained to the employee in a language that the employee understands.

Section 41.-Notification and hearing before termination on grounds of misconduct

1. Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.
2. Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make.

Held

1. The elements for sub judice under section 6 of the Civil Procedure Act were only limited to: Firstly, where a matter in issue was also directly and substantially in issue in a previously instituted suit or proceeding. Secondly, where the previous suit was between the same parties or between parties under whom they or any of them claimed, litigating under the same title; and finally, where, such suit or proceeding was pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.
2. Cause No.31 of 2013 was instituted by respondents’ employees in their individual capacities while the current petition was instituted by the union as an autonomous legal person. It could be that some or all claimants in Cause No. 31 of 2013 are also members of the union but it is clear that they are not the only members of the union. The union had filed the petition for members beyond the claimants in the earlier suit. The earlier suit was filed by or for 65 casual workers who served at the defunct Municipal Council of Karatina and who were at the time serving in the respondent’s employment.
3. Even  if the earlier suit were decided one way or the other, it would not serve to ameliorate multiplicity of suits but entertaining the current petition would serve that purpose;  since the employees not being litigants in the earlier suit but being the petitioner’s members would not have to file similar suits if the petition determined their concerns. The reliefs in the petition were clearly wider in scope or different from the ones in the earlier suit. The petition was not sub judice Cause 31 of 2013.
4. The matters of facts as pleaded by the petitioner had not been rebutted by the Respondents. That being the case, the Court finds that the law as pleaded and urged for the petitioner entitled the petitioner to the remedies as prayed for.
5. The bundle of elements of “fair labour practices” was elaborated in article 41(2), (3), (4) and (5) of the Constitution. Under article 41(2) every worker had the right to fair remuneration; to reasonable working conditions; to form, join or participate in the activities and programmes of a trade union; and to go on strike. Under article 41(3) every employer had the right to form and join an employers’ organization; and to participate in the activities and programmes of an employers’ organization. Under article 41(4), every trade union and every employer’s organization had the right to determine its own administration, programmes and activities; to organize; and to form and join a federation. Under article 41(5) every trade union, employers’ organization and employer had the right to engage in collective bargaining. The said constitutional provisions constituted the foundational contents of the right to fair labour practices.
6. The right to “fair labour practices” encompassed the constitutional and statutory provisions and the established work place conventions or usages that gave effect to the elaborations set out in article 41 or promoted and protected fairness at work. They included provisions for basic fair treatment of employees, procedures for collective representation at work, and of late, policies that enhanced family life while making it easier for men, women and persons with disabilities to go to work.
7. Section 2 of the Employment Act defined a “casual employee” to mean a person the terms of whose engagement provided for his payment at the end of each day and who was not engaged for a longer period than twenty four hours at a time. In the instant case, the Petitioner’s members were not casual workers because they were engaged for a longer period than twenty four hours at a time. They served for many days without any break in their service. Each of the petitioner’s members served for more than three continuous months and the respondent was required to reduce their contract of service in writing as provided for in section 9 (1) of the Act.
8. The standards that govern employment in the public service essentially discouraged and abolished casual employment in the public service. Casual workers did not qualify as public officers within the tests set in the standards for employment of public officers. For instance, by nature of casual service within the meaning assigned in the Employment Act, 2007, casual workers did not and could not enjoy the constitutional protection of public officers from victimization or discrimination for performing their duties and entitlement to due process in event of termination as provided for in article 236 of the Constitution and section 41 of the Employment Act.
9. Recruitment and selection process in engagement of casuals opens itself to failure to meet the constitutional and statutory tests of participation, competition, merit, inclusivity, representation, integrity, competence and suitability. In delivery, casual workers were unlikely, and were invariably unable, to comply with the relevant public service codes of conduct, ethics and integrity which were at the core of good public service delivery. Casual employment in the public sector easily fall prey to likely corrupt practices as manifested in cleptocracy in remuneration processes; favouritism or nepotism or bribery or cronyism in appointment processes; unprofessional service delivery through intellectual dishonesty to preserve the employment; and exclusion of competent and suitable persons from otherwise permanent employment.
10. In the instant case, the pretended casual worker was dejected and de-motivated as it happened because the legal protections were undermined in the casual employment relationship. Thus, in the event of temporary duties, employers in public service would rather invoke public  procurement laws and engage private sector service providers to avoid contravention of the constitutional and statutory provisions on public employment and whose framework did not only discourage but in effect abolished casual employment in the public service. The respondents violated the petitioner’s member’s rights to fair labour practices namely reasonable working conditions including minimum terms and conditions of service as protected under article 41 (1) of the Constitution and the provisions of the Employment Act, 2007. Therefore the petitioner was entitled to the prayers as made in the petition.

Orders

Order restraining and prohibiting the respondents from employing replacement labour or employees in the same positions to perform the same or similar work as the petitioner’s members

Order stopping the respondents from terminating or dismissing the petitioner’s members from the respondent’s employment without following the law and their terms and conditions of employment

Conversion of the terms of service of the petitioner’s members purportedly being casual employees in the service of the respondents to respondent’s employees on terms and conditions of service consistent with the Employment Act, 2007.

Respondents to pay the petitioner’s costs of the petition

Cases

East Africa;

1. Kariuki, Peter Wambugu & 16 others v Kenya Agricultural Research Institute Petition No 2 of 2013 – (Explained)
2. Muriithi, Dickson Ngema & another v County Government of Nyeri & another Employment and Labour Relations Cause No 31 of 2013 – (Mentioned)
3. Standard Chartered Bank Limited v Jenipher Atieno Odok Civil Case No 120 of 2003 – (Mentioned)

Statutes

East Africa;

1. Civil Procedure Act (cap 21) section 6 – (Interpreted)
2. Constitution of Kenya, 2010 articles 10, 22, 23,28, 41(1 – 25); 48; 232; 236 – (Interpreted)
3. County Government Act, 2012 (Act No 7 of 2012) section 61(3) – (Interpreted)
4. Employment Act, 2007 (cap 226) sections 35(1)(c); 37(1)(3); 61(3) – (Interpreted)

Advocates

1. Ms Wahome Gikonyo for the Respondent