Introduction 

The Court of Appeal in Samasource EPZ Limited t/a Sama v Meta Platforms, Incorporated & 186 others; Kenya Human Rights Commission & 8 others (Interested Parties) (Civil Appeal E595 of 2023) [2024] KECA 1152 (KLR) delivered on 20th September 2024, set aside orders that had been issued by the Employment and Labour Relations Court (ELRC). 

The ELRC had granted several orders at an interlocutory stage, some of which included mandatory injunctive orders.

“Unlike a prohibitory injunction, which preserves the status quo, a mandatory injunction goes well beyond simply maintaining the status quo pendente lite and is particularly disfavoured. A mandatory injunction is seen as upsetting the status quo and is subjected to a heightened preliminary standard.” Court of Appeal in Samasoure EPZ Ltd v Meta Platforms and Others.

Summary of the Case

The dispute arose when content moderators, employed by Samasource EPZ Limited (Sama) to moderate content on behalf of Meta Platforms (Meta) on Facebook app, alleged violations of constitutional and labour rights. 

These claims centred around the moderators’ alleged exposure to harmful working conditions and the termination of employment through what they claimed to be a purportedly unlawful redundancy exercise.

The content moderators’ claims in the ELRC included:

1. Unlawful redundancy: They argued that the redundancy notices issued by Sama lacked genuine justification, failed to comply with procedural requirements under Section 40 of the Employment Act, and were retaliatory following a previous lawsuit, Daniel Motaung v Sama & Meta Platforms.

2. Unhealthy working environment: The moderators alleged significant psychological harm due to exposure to disturbing content, inadequate mental health support, and exploitative

3. Lack of consultation: The moderators claimed they were not adequately consulted on the redundancy, and no reasonable efforts were made to redeploy affected employees.
4. Employer control and employment relationship: They asserted that Meta’s direct control over their work, including policies, tools, and performance evaluation—created a de facto employment relationship between Meta and the moderators, making Meta liable as their employer.

The moderators sought several remedies at the ELRC, including:

1. Declarations of employment relationships between the moderators and Meta Platforms.
2. Extensions of employment contracts pending resolution of the case.
3. Prohibitory orders preventing Meta and Sama from hiring replacements or retaliating against moderators.

4. Orders compelling Meta and Sama to provide medical and psychological support.
5. Regularization of immigration statuses for foreign moderators to enable them to remain in Kenya while pursuing the case.

The ELRC granted several interlocutory orders and made various findings, including:

1. A finding that an employment relationship existed between the moderators and Meta.
2. A mandatory order to extend the moderators’ employment contracts pending the resolution of the main petition.
3. A prohibition against Sama and Meta from recruiting new moderators to replace the petitioners.
4. An order requiring Sama and Meta to provide medical, psychiatric, and psychological support to the moderators.
5. An order compelling Sama and Meta to regularize the immigration status of foreign moderators to enable them to remain in Kenya.
6. An order restraining Sama and Meta from retaliating against the moderators for instituting the legal action.

The appeal to the Court of Appeal 

Sama as supported by Meta Plat forms, contested the ELRC’s orders at the Court of Appeal, arguing that: 

1. The ELRC improperly determined contested facts, such as the employment relationship, at the interlocutory stage.
2. The mandatory injunctions disrupted the status quo and exceeded the scope of interim relief. 
3. The ELRC failed to apply the proper legal threshold for mandatory injunctions.
4. The orders effectively pre-empted the outcome of the main trial, causing undue prejudice to the appellants. 

The Court of Appeal’s position on mandatory interlocutory injunctions 

The Court of Appeal held that mandatory interlocutory injunctions differ from prohibitory injunctions, which aim to preserve the status quo. The Court emphasized that mandatory injunctions require a heightened preliminary standard, as they often disrupt the existing status quo and may result in finality to disputes prematurely. Quoting the English case of Lo cabail International Finance Ltd vs Agroexport and Others [1986] 1 ALL ER 901, the Court reiterated: “A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases…before granting such an injunction, the court had to feel a higher degree of assurance that at the trial it would appear that the injunction had rightly been granted.” 

The Court of Appeal outlined the guidelines for granting such relief as follows: 

1. The plaintiff must establish a strong case for trial, exceeding the prima facie standard that applies in prohibitory injunctions. 
2. The relief must be necessary to prevent irreparable or serious injury that cannot be compensated monetarily. 
3. The balance of convenience must favour the party seeking the injunction

The Court of Appeal held that the ELRC delved into contested issues, such as the existence of an employment relationship between the moderators and Meta Plat forms and the interpretation of their contracts, effectively issuing findings akin to a final judgment. The Court of Appeal found no exceptional circumstances warranting the mandatory injunctions granted by the ELRC. The Court added that the issues raised by the ELRC were heavily contested and required determination on merit at trial. 

The orders issued risked resolving the main dispute prematurely, potentially rendering the ongoing trial moot. The Court added that consequences of such an order is that it can prejudice the yet to be resolved dispute and even place the dispute beyond the reach of the law because some consequences of a court order may be irreversible. 

In the final analysis, the Court of Appeal set aside the orders granted by the ELRC.

Conclusion 

The decisions, both at the ELRC and the Court of Appeal, attracted significant attention due to the nature of the case. The finding by the ELRC that Meta Platforms was the moderators’ employer particularly drew scrutiny. The ELRC had reached this conclusion based on Meta’s control over key aspects of the moderators’ work, including tools, policies, and performance metrics. This ELRC ruling (which has now been set aside by the Court of Appeal) raised critical questions about the viability of outsourcing and business process outsourcing (BPO) as a strategy for organizations. Furthermore, this case is among the first to address workplace issues arising from digital platforms, possibly marking a wave of similar cases likely to emerge as digital platform work and BPOs expand.

It is important to note that the substantive petition is yet to be determined by the ELRC, leaving the issues raised unresolved as the Court of Appeal was handling an interlocutory appeal. The eventual decision of the ELRC on the main petition will undoubtedly have significant implications for the labour and digital economy landscape in Kenya.