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Court to decide in February whether Meta has a case to answer over labour dispute

The Employment and Labour Relations Court will early next year decide whether or not Facebook owner Meta Platforms Inc has a case to answer over allegations of poor working conditions in its Nairobi hub in violation of the Kenyan constitution.

In May this year, Daniel Motaung a South African national, moved to court suing Meta and its main content moderation sub-contractor in Africa, Sama, for forced labour and human trafficking, unfair labor relations, union busting, and failure to provide “adequate” mental health and psychosocial support.

Motuang was previously employed by Sama, whose moderators, stationed at a hub in Nairobi, are sourced from a number of African countries.

The ruling is expected after the filing of submissions by attorneys representing the social media giant, Kaplan and Stratton law firm, and Nzili and Sumbi Advocates for the plaintiff Daniel Motaung, on Tuesday.

The filings follow Meta’s request to Kenya’s employment and labour relations court to have the lawsuit against the company dismissed on the grounds that local courts lacks jurisdiction over it because Meta is not incorporated in the East African nation. Motaung, according to Meta, was Sama’s employee rather than its own.

In seeking an end to the case Meta said, “Without jurisdiction, any proceedings in the Petition with respect to the Applicants would have no integrity and would amount to a nullity.” They further argued that the Constitution and laws of Kenya do not have extraterritorial application and do not apply to them as foreign corporates.

The petitioner however countered citing the case of Dorcas Kemunto Wainaina v IPAS ELRC arguing that the court has jurisdiction. In that case, the employer (IPAS) was based in North Carolina, in the United States of America, while the employee operated mostly from Nairobi.

“As guided by Radido J in paragraph 36 of the judgement, the factors that determine whether the Court has jurisdiction in such a case are where the employee was to be based, the tax laws to which the employee’s remuneration was to be subjected, and if the dispute concerned a matter the Employment and Labour Relations Court has jurisdiction over. The Petitioner has been able to prove all these factors,” the petitioner submitted.

In its submissions, Meta distances itself from the employment of Motaung claiming he was a Sama employee.

“The Applicants have no contractual relationship or agreement with the Petitioner. On 7 June 2022, the Petitioner filed the Petition herein alleging a myriad of violations of his Constitutional rights that allegedly occurred during his employment with the First Respondent in Nairobi,” said Meta in its submissions.

However, lawyers representing Matoung said that the work done by Sama’s content moderators, who sift through social media posts on Meta’s platforms to remove posts that spread hate, misinformation, and violence, is issued by Meta.

“The correct position is that work done by the petitioner (Motaung) and the other Facebook content moderators at the 1st Respondent’s (Sama’s) premises was assigned and supervised by the 2nd and 3rd Respondents (Meta Platforms Inc and Meta Platforms Ireland). This Petition stems from human rights violations that occurred in the performance of this work. For this reason, the 2nd and 3rd Respondents, being the true employers of the Petitioner, are proper parties in this Petition,” said Nzili and Sumbi Advocates in its submission.

The decision, which is scheduled for February 6, 2023, will determine if Meta will still be charged in Kenya. The legal team defending Motaung, Nzili, and Sumbi Advocates, contended that Meta could be sued in Kenya because it has business there, pays a digital services tax, and its platforms, like Facebook, are widely used there.

Motaung, who was allegedly fired for planning a 2019 strike and attempting to unionize Sama’s staff, is suing for damages on behalf of himself and other former and current moderators. Among other things, he wants Sama and Meta to be forced to stop breaking unions and to offer support for mental health.

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