[2019] KEELRC 2451 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA

CAUSE NO 467 OF 2018

KENYA SHIPPING CLEARING AND FREIGHT

LOGISTICS AND VALUERS UNION.................................................CLAIMANT

VS

BOLLORE TRANSPORT & LOGISTICS (K) LTD.............1ST RESPONDENT

CAREER DIRECTIONS LTD...................................................2ND RESPONDENT

SHEER LOGIC MANAGEMENT CONSULTANTS LTD....3RD RESPONDENT

RULING

1. This ruling relates to three applications filed by the 1st, 2nd and 3rd Respondents all seeking orders to disembark from these proceedings.

2. The 1st Respondent’s application dated 23rd August 2018 is based on the following grounds:

a) That vide a Memorandum of Claim dated 18th July 2018, the Claimant has instituted a claim against the Respondents herein;

b) That the Claimant claims redundancy payment from the 1st Respondent for breach of outsourcing contract entered into between the 1st and 2nd Respondents;

c) That the outsourcing contract entered into between the 1st and 2nd Respondents was exclusively between those parties and not the Claimant herein. The Claimant was not a party to the aforesaid contract;

d) That in the above mentioned contract the responsibility of payment of wages of the employees/workers when due remained with the 2nd Respondent who was the employer;

e) That the 1st Respondent has been improperly and immaturely enjoined in this suit as it had no direct link with the Claimant and/or its members;

f) That from the pleadings, it is very clear that the members of the Claimant were employees of the 2nd Respondent and not the 1st Respondent;

g) That it is in the best interest of justice that the 1st Respondent’s name be struck out and/or the suit against the 1st Respondent be dismissed with costs.

3. In a supporting affidavit sworn by the 1st Respondent’s Human Resource Manager, Jane Wairimu it is deponed that according to an outsourcing contract between the 1st and 2nd Respondents executed on 1st August 2017, the workers employed by the 2nd Respondent were to work for the 1st Respondent on the instructions of the 2nd Respondent. Wairimu states that the workers remained employees of the 2nd Respondent.

4. Wairimu depones that in any outsourcing contract, the responsibility of payment of wages of the employees/workers remains with the employer, in this case, the 2nd Respondent. The 1st Respondent maintains that it is incapable of enforcing any rights existing between the 2nd Respondent and its employees.

5. Wairimu further depones that the outsourcing contract between the 1st and 2nd Respondents had been renewed and/or extended to the year 2019 and the allegations of breach of contract are therefore unfounded.

6. The 2nd Respondent’s application is dated 4th October 2018 and is based on the following grounds:

a) In June 2018, the 1st Respondent did vary its outsourcing agreement with the 2nd Respondent and brought in Sheer Logic Management Consultant Limited, the 3rd Respondent herein to handle the Mombasa container terminal;

b) As such, the 2nd Respondent is no longer responsible for the Mombasa container terminal operated by the 1st Respondent hence has no relationship whatsoever with the Claimant and its members to warrant being a party to the suit;

c) The parties herein stand to suffer no damages and/or losses if the 2nd Respondent is struck off as a party to this suit as the Claimant does not make any valid claim against them.

7. In a supporting affidavit sworn by Rodgers Wafula, it is deponed that on 1st August 2016, the 1st and 2nd Respondents entered into an agreement in which the 1st Respondent outsourced employees from the 2nd Respondent, with the 2nd Respondent then employing persons and seconding them to the 1st Respondent.

8. Wafula further depones that the 2nd Respondent issued one year employment contracts ending on 31st July 2017, to the Claimant’s members. The contracts were renewed for a further one year to lapse on 31st July 2018.

9. Wafula adds that in June 2018, the 1st Respondent varied its agreement with the 2nd Respondent and brought in Sheer Logic Management Consultant Limited, the 3rd Respondent herein to handle the Mombasa container terminal.

10. The 2nd Respondent therefore maintains that it was no longer responsible for the Mombasa container terminal operated by the 1st Respondent and as such, the 2nd Respondent did not renew employment contracts for the Claimant’s members.

11. The 3rd Respondent’s application dated 15th November 2018 is based on the following grounds:

a) The Claimant’s Memorandum of Claim discloses no reasonable cause of action as between the Claimant and the 3rd Respondent;

b) The claim is scandalous, frivolous and/or vexatious;

c) It may prejudice, embarrass or delay the fair trial of the cause;

d) It is otherwise an abuse of the court process.

12. In a supporting affidavit sworn by the 3rd Respondent’s Acting Human Resource Manager, Reinhard Ranji it is deponed that with effect from 1st June 2017, the 3rd Respondent was contracted by the 1st Respondent to provide agreed labour supply services.

13. Pursuant to the aforesaid contract between the 3rd Respondent and the 1st Respondent, the 3rd Respondent contracted its employees with effect from 1st July 2018 for purposes of supplying labour services to the 1st Respondent.

14. Ranji further depones that the 3rd Respondent is under no obligation, legal or otherwise, to any of its employees in respect of any period prior to the said employee’s employment by the 3rd Respondent.

15. Additionally, Ranji states that the Claimant Union is neither a party nor privy to any of the 3rd Respondent’s contracts of employment with its employees. The Claimant therefore has no legal or other right to query and/or otherwise interfere with the 3rd Respondent’s employment contracts with the latter’s employees.

16. My consideration of the multiple applications filed by the Respondents together with the supporting affidavits and submissions reveal the following:

a) That there exists an outsourcing agreement between the 1st Respondent and 2nd Respondent and a separate one between the 1st Respondent and the 3rd Respondent;

b) That both outsourcing agreements have a direct impact on the Claimant’s members who have variously been deployed to work for the 1st Respondent;

c) That the said outsourcing agreements have generated several rights and obligations for all parties in the suit herein;

d) That there are sharp disagreements among the Respondents on the extent and import of the said rights and obligations.

17. For the Court to determine the impact of the outsourcing agreements on accrued and subsisting rights of the Claimant’s members, it will be necessary to take evidence in a full trial. I have therefore arrived at the conclusion that to allow any of the Respondents to disembark from the proceedings herein would give rise to a miscarriage of justice.

18. For this reason, the Respondents applications dated 23rd August 2018, 4th October 2018 and 15th November 2018 are declined.

19. The costs of the applications will be in the cause.

20. Orders accordingly.

DATED SIGNED AND DELIVERED AT MOMBASA THIS 24TH DAY OF JANUARY 2019

LINNET NDOLO

JUDGE

Appearance:

Mr. Wawire for the Claimant

Mr. Adhoch for the 1stRespondent

Mr. Omondi for the 2nd Respondent

Mr. Kibanya for the 3rd Respondent