[2018] KEELRC 1796 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 334 OF 2015

(Before Hon. Justice Hellen S. Wasilwa on 31st May, 2018)

AGILITY LOGISTICS LIMITED ..................................... CLAIMANT

VERSUS

KENYA LONG DISTANCE TRUCK DRIVER

AND ALLIED WORKERS UNION .............................. RESPONDENT

RULING

1. The ruling is in respect of orders issued by Court on 17/12/2015 directing this matter to the Conciliator to do a fact finding mission and establish union membership at Claimants’ premises and report back to Court.

2. Following this order the Conciliator filed his report in Court dated 7/3/2016 wherein the report indicated that the union managed to recruit 174 members out of a total workforce of 275 unionisable employees as at January 2016.

3. When this report was filed in Court, the Respondents applied to cross-examine the Conciliator.

4. In the cross-examination, the Conciliator reiterated averments in his report that he did not compile the report without visiting the company so that he could get the file. He stated that they agreed to go to the employer’s premises on 12/2/2016. The Respondents Human Resource Officer one Catherine was present but according to the Conciliator’s report, it is not indicated that she was present nor are the minutes of the said meeting in Court.

5. The Conciliator avers that he was given a list showing all labour force and the number of employees was 324. Checkoff by union had 96 members, which was extracted from the company. This was capturing what they had paid as at January 2016 as union dues.

6. In the March report, the union said they had recruited 174 out of 275 but the Conciliator had no list of check off by the union and in that scenario, a head count was not possible as that was a transport business there was no agreement written at the company’s premises.

Submissions

7. The Respondent filed their submissions where they submitted that after the analysis of the evidence of the Conciliator, the report by the Conciliator was unreliable and biased against the Respondent and the orders of the Court which were very clear were not followed.

8. They aver that through the document already tendered to Court they had proved that they had attained a simple majority by the time the counter-claim was filed and when the Claimant were given a chance to cross-examine the Conciliator, they opted not to ask any question and that indicated clearly that they must have influenced the Conciliator to write a favourable report to them.

9. They further aver that the check off lists was not expressly challenged and urge the Court to accord the Respondent recognition as it will not in any way prejudice the Claimant but rather settle the long standing dispute as parties will now engage one another and agree on a Collective Bargaining Agreement that will be binding to them both.

10. The Claimant in their submissions submitted that during cross-examination, the Conciliator stated that the Claimant’s Human Resource Manager was present as well as the Respondent’s Secretary General hence they were well represented and that if there was any aspect of the proceeding that did not please the Respondent he would have lodged a complaint immediately to the Conciliator, his supervisors or even to the Court.

11. The Claimant avers that the Conciliator undertook that exercise under directions from the Court and prepared a report which was filed in Court and therefore raising the issue of minutes is a little awkward as it is tantamount to challenging the orders and authority of the Court.

12. They further aver that the Conciliator indicated it was not possible to do a head count since a good number of the union members are drivers who are normally out on trips as is the nature of the Claimant’s enterprise. The Respondent also stated that they were allegedly withholding a list of 13 names from the Claimant hence the Conciliator could not be expected to factor in the phantom lists by the Respondent so as to artificially inflate or boost its numbers for purposes of clinching a simple majority.

13. They further aver that the Conciliator was not avoiding Court but he had retired from employment and retired to his rural home where he is recuperating from old age-related ailment and they urge the Court not to find fault on his part for he could not be reached through summons.

14. I have examined the submissions of both parties following the Conciliator’s report. This Court referred this case for conciliation under Section 15(4) of the Employment and Relations Court Act which states as follows:-

“If at any stage of the proceedings it becomes apparent that the dispute ought to have been referred for conciliation or mediation, the Court may stay the proceedings and refer the dispute for conciliation, mediation or arbitration”.

15. The Conciliator submitted his report, which I have no reason to doubt. In the premises, I do find that the Respondent have not achieved the requisite number of members to warrant recognition.

16. The Respondent is encouraged to continue with recruitment of its members to achieve the threshold and then resubmit their application for recognition with the Claimant’s cost in the cause. In view of this order which seem to resolve this suit entirely, I order this filed marked as closed with no orders as to costs.

Dated and delivered in open Court this 31st day of May, 2018.

HON. LADY JUSTICE HELLEN WASILWA

JUDGE

In the presence of:

Onyonyi for Claimant – Present

Miss Karitha holding brief for Kimani for Respondent Applicant