[2017] KEELRC 1435 (KLR)
The court found that the claimant failed to exhaust the mandatory conciliation process under Section 62 of the Labour Relations Act before filing the claim. The claim was also filed in disregard of the dispute resolution procedures in the parties' collective bargaining agreement and the applicable procedural rules....
Source-derived case information.
- Citation
- [2017] KEELRC 1435 (KLR)
- Parties
- Applicant: Bakery Confectionery Food Manufacturing & Allied Workers Union (K); Respondent: TSS Grain Millers Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 463 of 2016
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection/application to Strike Out Claim
- Outcome
- claim struck out without prejudice
- Legal Topics
- Trade Dispute Reporting, Conciliation Process, Collective Bargaining Agreement, Insolvency of Employer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bakery Confectionery Food Manufacturing & Allied Workers Union (K)
Applicant
TSS Grain Millers Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection/application to Strike Out Claim
Legal Issues
- 1 Whether the claim was filed prematurely before exhaustion of the conciliation process under Section 62 of the Labour Relations Act.
- 2 Whether legal proceedings against a company under administration can be initiated without approval of the court or administrator.
- 3 Whether the claim disregarded the parties' collective bargaining agreement and applicable procedural rules.
Ratio Decidendi
The court found that the claimant failed to exhaust the mandatory conciliation process under Section 62 of the Labour Relations Act before filing the claim. The claim was also filed in disregard of the dispute resolution procedures in the parties' collective bargaining agreement and the applicable procedural rules. Furthermore, the respondent being under administration meant that legal proceedings could not be initiated without the requisite approvals. As a result, the claim was unsustainable in its current form and was struck out, but without prejudice to the claimant's right to file a fresh claim upon correcting the procedural defects.
Court Disposition
claim struck out without prejudice
Orders
- The claim is hereby struck out without prejudice to the claimant’s right to file a fresh claim upon correcting the defects.
- No order as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR
RELATIONS COURT AT MOMBASA
CAUSE NUMBER 463 OF 2016
BETWEEN
BAKERY CONFECTIONERY FOOD MANUFACTURING &
ALLIED WORKERS UNION (K)...........................CLAIMANT
VERSUS
TSS GRAIN MILLERS LIMITED...................RESPONDENT
RULING
1. The Respondent seeks to have the Claim struck out, relying on 2 grounds. First, the Respondent is under administration. Legal process initiated without the approval of the Court, or that of the Administrator, is a nullity. Second, the Claimant made a report to the Cabinet Secretary, Ministry of Labour, on 27th May 2016, under Section 62 of the Labour Relations Act No. 14 of 2007. Conciliation process has not been exhausted.
2. The Application was heard on 14th March 2017.
The Court Finds:-
3. The Claimant made a report on the presence of a trade dispute between the Parties. Report was made to the relevant Cabinet Secretary, on 27th May 2016, under Section 62 of the Labour Relations Act.
4. The process under Section 62 of the Labour Relations Act has neither been pursued, nor exhausted.
5. The Claim was filed in disregard of Section 62 above, and Clause 3 of the Parties’ Collective Bargaining Agreement dated 28th May 2009.
6. The Court agrees entirely with the Respondent that the Claim was filed in disregard of Rule 6 of The Industrial Court (Procedure) Rules 2010 (currently Rule 5 of the Employment and Labour Relations Court (Procedure) Rules, 2016.
7. There is considerable merit in the Respondent’s argument on the effect of the Respondent being insolvent.
8. The Claim in its current form, is not sustainable.
IT IS ORDERED:-
a) The Claim is hereby struck out without prejudice to the Claimant’s right to file a fresh Claim, upon correcting the defects pointed out by the Respondent.
b) No order on the costs.
Dated and delivered at Mombasa this 31st day of March 2017.
James Rika
Judge