[2018] KEELRC 1541 (KLR)
The Court found that the Union filed the claim before the statutory conciliation process had concluded, as evidenced by the Conciliator's certificate being issued after the claim was filed. The law requires parties to exhaust the conciliation process before approaching the Court. The Union's premature filing...
Source-derived case information.
- Citation
- [2018] KEELRC 1541 (KLR)
- Parties
- Applicant: Kenya Building, Construction, Timber & Furniture Industries Employees Union; Respondent: Sinohydro Tianjin Engineering Co. Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1713 of 2016
- Procedural Posture
- Cause / Judgment
- Outcome
- claim struck out
- Judges
- MSA Makhandia
- Legal Topics
- Union Recognition, Conciliation Process, Premature Filing, Employee Rights, Industrial Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Building, Construction, Timber & Furniture Industries Employees Union
Applicant
Sinohydro Tianjin Engineering Co. Ltd
Respondent
Procedural Posture
Cause / Judgment
Legal Issues
- 1 Whether the Union's claim was prematurely filed before the conclusion of the statutory conciliation process.
- 2 Whether the Respondent harassed or intimidated employees for joining the Union.
Ratio Decidendi
The Court found that the Union filed the claim before the statutory conciliation process had concluded, as evidenced by the Conciliator's certificate being issued after the claim was filed. The law requires parties to exhaust the conciliation process before approaching the Court. The Union's premature filing contravened this requirement, rendering the claim incompetent. Additionally, the Union's allegations of harassment and intimidation by the Respondent were unsupported by evidence, as no oral or affidavit evidence was presented. Consequently, the Court struck out the claim for prematurity and lack of merit on the harassment allegation.
Court Disposition
claim struck out
Orders
- The Memorandum of Claim is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 1713 OF 2016
KENYA BUILDING, CONSTRUCTION,
TIMBER&FURNITURE
INDUSTRIES EMPLOYEESUNION...............CLAIMANT
v
SINOHYDRO TIAJIN
ENGINEERING CO.LTD.............................RESPONDENT
JUDGMENT
1. The Kenya Building, Construction, Timber & Furniture Industries Employees Union (Union) commenced legal proceedings against Sinohydro Tianjin Engineering Co. Ltd (Respondent) on 25 August 2016 and the issue in dispute was stated as Refusal to recognise the Union.
2. On 8 September 2016, the firm of Ogola Okello & Co. Advocates filed a Notice of Appointment of Advocates on behalf of the Respondent.
3. The Respondent did not file a Response to the Memorandum of Claim within the prescribed time and on 17 October 2016, the Court in the presence of its advocate directed it to file a Response within 14 days.
4. The Response was not filed.
5. On 24 July 2017, the Union fixed the Cause for hearing on 21 May 2018.
6. When the Cause came up for hearing on the scheduled date, the Respondent and its advocate were not in Court.
7. Mr. Nyabena holding brief for Ms. Chege for the Union proposed that the Cause be determined on the basis of the record and submissions to be filed.
8. The Court directed, and the Union filed its submissions on 8 June 2018.
9. The Union reported a trade dispute to the Cabinet Secretary, Labour on 23 June 2016 and the dispute was stated as refusal to recognise the Union.
10. It appears that a Conciliator was appointed.
11. In terms of Part VIII of the Labour Relations Act, the parties should have gone through conciliation and if the dispute was unresolved, the Conciliator should have issued a certificate in terms of section 69 of the Act to enable the Union move to Court.
12. It is apparent that by the time the Union was moving Court on 25 August 2016, the conciliation process had not ended either through a resolution or in a stalemate for according to a certificate filed by the Union in its submissions, the Conciliator issued a certificate only on 26 January 2017.
13. That the Union moved the Court prematurely is therefore obvious.
14. There are reasons why the law provides for conciliation in disputes such as this one and the partners should not lightly short circuit that conciliation process.
15. In the view of the Court, the prematurity should lead to the striking out of the Cause.
16. However, the Union also contended that the Respondent had harassed and intimidated employees who had joined it for exercising their right to join and participate in the activities of a Union.
17. This part of the dispute required evidence, and because the Union did not lead any evidence orally or through affidavits, the Court finds no merit on that aspect of the dispute.
Conclusion and Orders
18. In light of the above, the Court has no hesitation in declining to entertain the dispute presented and orders that the Memorandum of Claim herein be struck out with no order as to costs.
Delivered, dated and signed in Nairobi on this 13th day of July 2018.
Radido Stephen
Judge
Appearances
For Union Ms. Chege
For Respondent Ogola Okello & Advocates
Court Assistant Lindsey