Finlay’s lengthy compensation fight with tea pickers claiming violation of rights

Casual labourers employed without contract at Finlays Company

Casual labourers employed without contract at Finlays Company in Kericho on December 6, 2019.
 

Photo credit: Tonny Omondi | nation Media Group

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It has been back and forth for former and current tea pickers of James Finlay as they seek compensation from the multinational firm for alleged violation of their rights arising from poor working conditions at the expansive farms.

The more than 1,000 former and current workers had initially won an application for a team of experts to visit the tea farms to gather evidence to be used in the case before a Scottish court.

However, the application was shot down when the company successfully challenged the move when the company argued that the experts can only visit the tea farms with the assistance of the Kenyan courts and authorities.

And recently, the company brought another application seeking to stop the cases in Edinburgh, arguing that it is an assault on Kenya’s sovereignty.

The multinational argues that the Kenyan courts can handle the case and for that matter, the cases in Scotland should be discontinued.

Attempts by the workers to challenge the petition filed by James Finlay, arguing that a matter touching on the sovereignty should be handled by the High Court, was dismissed by Employment and Labour Relations judge James Rika.

In the case, the former employees argue that they were subjected to poor working conditions, including working for 12 hours a day for six days and carrying heavy baskets on their backs after picking the tea leaves. The former employees argue that the baskets weighed up to 30 kilogrammes.

In the ruling last month, Justice Rika said the Employment and Labour court has jurisdiction to enforce and interpret the Constitution, so long as the subject matter is related to employment and labour relations.

“The petition herein is between an Employer and an Employee. The E&LRC clearly has personal jurisdiction over the Parties,” the judge said.

Secondly, the judge said the subject matter is a dispute over work injuries, which James Finlay argues has been filed at the wrong territory, resulting in certain constitutional, employment and labour relations violations against the company, which is clearly a subject to be handled by the ELR court.

The judge directed the parties to file the submissions and mention the case on December 2 for a judgment date.

Constitutionalism

According to James Finlay, the decision of the workers to institute the proceedings before the Scottish Court of Sessions, alleging violation of their rights, is an affront to the constitution and the sovereignty of Kenya.

The company, which was incorporated in 1925 with Scottish roots, wants the court to issue a declaration that the Director of Occupational Health and Safety Services in Kenya is the one to deal with work injury claims arising within the country in line with Article 159 of the Constitution and Section 16 of the Work Injury Benefits Act.

The company wants the court to issue a permanent injunction, barring the former and current workers or their agents from proceeding with the cases in Scotland.

The workers, however, argue that the petition is part of the wider plan by the company to frustrate their case in Scotland.

They encountered frustration at first when they allegedly sought information from the company through their advocate in 2019.

The information sought concerned the work conditions in tea estates and when it was not forthcoming, they made an application in a Scotland court and the application was allowed.
The workers argued that the information was crucial to advancing their case in the All-Scotland sheriff personal injury court as they seek to be paid damages.

The employees’ claim before the Scottish Court is that they suffered musculoskeletal injuries, arising from common conditions of employment in the tea estates.

In 2018, the Scottish court allowed the experts among them health and tea production experts and lawyers to tour the tea estates for what they termed as locus inspection, but the company successfully challenged the move, saying it cannot be done without the assistance of the Kenyan courts and authorities.

Inspection team blocked

Justice Stephen Radido of the Employment and Labour Relations court blocked the inspection team and the decision was upheld by the Court of Appeal as judges ruled that judicial aid was necessary as it would ensure that the order, issued by the Scottish court, is consistent with Kenyan public policies.

“Would a sovereign State, and Kenya is one, allow foreigners to walk into its territory and undertake such and related activities without supervision or assistance? The Judge found, and we agree, that there were public policy issues involved in the case where the Scottish Court had issued locus inspection orders to be executed in Kericho, Kenya,” Justices (Retired) Roselyn Nambuye, Wanjiru Karanja and Sankale ole Kantai said.

The inspection team would have included Alan J. Silman, a professor of musculoskeletal health, Richard Graveling, an ergonomist, David Maina, a tea industry economics expert, Nigel Melican, a tea production technology expert and Margaret McQueen, an orthopaedic surgeon, as well as legal team and a translator.

They were expected to observe and record tea picking, take certain measurements of the tea estates and factories, take videos of various activities and photocopy documents.

But the company argued that it would be in breach of the Constitution and other laws if the experts visited the country on orders of a Scottish court without the authority of Kenyan courts.

But the workers said permitting and facilitating access to the factories was not prohibited by law and the case was brought to frustrate their case in Scotland. The courts disagreed.

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