Loss and win for Meta and moderators

Court of Appeal in Nairobi has lifted orders requiring a Kenyan labour outsourcing to retain Facebook moderators beyond their contracts.

The court found that the Employment and Labour Relations Court had erred by issuing orders barring Samasource Kenya EPZ from either declaring the moderators redundant or hiring new staff without giving the orders a specific time to lapse.

Justices Daniel Musinga, Asike Makhandia, and John Mativo, said it was unfair to Sama and Meta Platforms Incorporated, Meta Platforms Ireland Limited, to issue the orders on the contracts before hearing their side of the story.

They observed that Justice Byrum Ongaya ordered proper medical, and psychiatric care for the moderators without hearing both parties.

“The validity of the contracts is one of the issues pending determination by the court. Extending the contracts before interrogating the case on merits has the potential of prejudicing the case. Also, by issuing an order which effectively extends the contracts, when the existence of an employer/employee relationship is disputed has a potential of re-defining the parties’ rights and obligations before hearing both parties on merit. We say no more lest we delve into the pending dispute,” the bench headed by Justice Musinga ruled.

In a separate ruling, the same court dismissed Meta’s application to be removed from the case. The judges were of the view that Meta had raised issues of fact and not law, hence, the Labour court had authority to decline its plea.
“We find no improper exercise of jurisdiction or misdirection by the learned judge in the impugned rulings,” they ruled.

In the case, Mercy Mutemi, the lawyer for 180 moderators told the court that Samasource had stopped paying her clients.

Samasource on the other hand claimed that the contracts of those who had been affected had already lapsed and it was paying those whose contracts were still effective.

It sought to have the application for contempt be heard on May 25, 2023 but Mutemi insisted that It had wittingly implemented the redundancy notice which it had been ordered not to.

Mutemi argued Samasource had hired the moderators on a one year contract. However, according to her, it issued a redundancy notice indicating that the contracts would lapse on March 31, 2023.

The Judge heard that the moderators, some who are foreigners have not been paid and their livelihood is at stake.

"There is an order that they are supposed to be working and getting paid. That is the order that is being breached. We only need a mandatory injunction because they have refused to obey,” argued Mutemi.

Meta, Samasource were opposed to the judge issuing the orders.

Meta’s lawyer Dr Fred Ojiambo told the judge that his client had no links with the aggrieved moderators. He stated that it was also impossible to pay an employee whose contract had expired.

“We object to any interim order compelling the first and second respondents to pay any amounts to anyone. The reason is that we do not have any contract with the petitioners in this matter. The first respondent has not issued any redundancy. The first respondent is not respondent is not responsible of paying salaries to anyone. It would be a travesty of justice and they are orders in futility. We have said from the beginning, we are not employers of the applicants,” he argued.

However, Mutemi argued that there was a direct link as Meta was paying Samasource for the moderators to regulate Facebook.

In the case, the moderators told the court that Meta allegedly terminated its contract with a Samasource and hired another firm, Majorel, for the same services.
Majorel, which is also a labour outsourcing firm, has moderators for Tik Tok in Kenya.

Kiana Andrise and 38 other moderators filed the case. They sued Meta Platforms, INC, Meta Platforms Ireland Limited, Samasource Kenya EPZ Limited and Majorel Kenya Limited.

In the case, the court heard that Samasource allegedly issued a blanket redundancy notice on March 10, 2023. The moderators alleged that they have already been black listed following a separate case where Meta is accused of infringing moderators labour rights.