[2022] KEELRC 1728 (KLR)
The court found that the union failed to discharge its burden of proof as required by law. The union did not present any sworn evidence, either orally or by affidavit, to substantiate its claims regarding union membership and entitlement to recognition and deduction of union dues. The County Labour Officer's report...
Source-derived case information.
- Citation
- [2022] KEELRC 1728 (KLR)
- Parties
- Applicant: Amalgamated Union of Kenya Metal Workers; Respondent: Cads Motors Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 437 of 2017
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim dismissed
- Judges
- S Radido
- Legal Topics
- Trade Union Recognition, Union Dues Deduction, Burden of Proof, Labour Relations Act Section 54
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amalgamated Union of Kenya Metal Workers
Applicant
Cads Motors Ltd
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the respondent was obligated to sign a recognition agreement with the union.
- 2 Whether the respondent was required to deduct and remit trade union dues to the claimant.
- 3 Whether the claimant discharged the burden of proof regarding union membership threshold.
Ratio Decidendi
The court found that the union failed to discharge its burden of proof as required by law. The union did not present any sworn evidence, either orally or by affidavit, to substantiate its claims regarding union membership and entitlement to recognition and deduction of union dues. The County Labour Officer's report confirmed that the union had not met the statutory threshold for recognition under section 54 of the Labour Relations Act. Consequently, the union's claims were unproven and the cause lacked merit.
Court Disposition
claim dismissed
Orders
- The cause is dismissed for lack of merit.
- No order as to costs.
Full Case Text
Judgment text and source record
33 paragraphs
Amalgamated Union of Kenya Metal Workers v Cads Motors Ltd (Cause 437 of 2017) [2022] KEELRC 1728 (KLR) (25 May 2022) (Judgment)
Neutral citation: [2022] KEELRC 1728 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kisumu
Cause 437 of 2017
S Radido, J
May 25, 2022
Between
Amalgamated Union of Kenya Metal Workers
Claimant
and
Cads Motors Ltd
Respondent
Judgment
1. The Amalgamated Union of Kenya Metal Workers (the union) sued Cads Motors Ltd (the respondent) on December 8, 2017, and it stated the Issues in dispute as:(1)Refusal by the respondent to sign recognition agreement.(2)Refusal to deduct and remit trade union dues to the claimant.
2. The respondent filed a response to the memorandum of claim on July 13, 2018, and this prompted the union to file a reply to the response on January 24, 2019.
3. When the cause came up for hearing on July 17, 2018, the union informed the court that it would not lead any evidence and that it would rely on the memorandum of claim and oral submissions.
4. The union made oral submissions on the same day, and the respondent’s case was adjourned to February 7, 2019.
5. After several adjournments, the respondent’s case was eventually taken on February 21, 2022.
6. At the close of the hearing, the court directed the County Labour Officer to conduct a ballot amongst the respondent’s employees to establish the level of union membership.
7. The County Labour Officer filed a report with the court on March 18, 2022 and on March 21, 2022, the court directed the parties to file and exchange written submissions.
8. The union filed its submissions on April 20, 2022 and the respondent on April 28, 2022.
9. The court has considered the pleadings, evidence, and submissions.
Burden Of Proof 10. The general rule of evidence is that the party asserting the existence of certain facts or state of affairs must place before the court proof of the existence of those facts under on oath.
11. The oath may be administered orally in court or through an affidavit filed in court.
12. The union did not lead any evidence either through a sworn witness (or documents) to discharge the burden of proof placed upon it (as the claimant).
13. The mere of filing of documents which are not produced under oath would not suffice. The option the union took not to call a witness should only be exercised where affidavits of evidence have been relied on.
14. In the case at hand, the union relied on the memorandum of claim, the contents of which remain just allegations until evidence in support is produced.
Merits 15. The court also notes that the report of the County Labour Officer established that the Union had not satisfied the threshold set by section 54 of the Labour Relations Act.
16. The union must go back to the drawing board and commence fresh recruitment.
Conclusion and Orders 17. The court finds no merit in the cause, and it is dismissed.
18. Because of the anticipated social partnership between the parties, no order on costs.
DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 25TH DAY OF MAY 2022. RADIDO STEPHEN, MCIARBJUDGEAppearancesFor union Mr Ondiege, Industrial Relations Officer.For respondent Ms Atieno, instructed by SB Mbeche & Co Advocates.Court Assistant Chrispo Aura.