[2018] KEELRC 1352 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO. 1492 OF 2015

KENYA CONCRETE STRUCTURAL CERAMICS

TILES WOODPLY & INTERIORS DESIGNS WORKERS UNION........CLAIMANT

- VERSUS -

LANDMARK HOLDINGS.......................................................................RESPONDENT

(Before Hon. Justice Byram Ongaya on Tuesday 31st July, 2018)

JUDGMENT

The claimant filed the memorandum of claim on 25. 08. 2015 through its Secretary General one Dishon Angoya. The claimant stated that the issue in dispute was the refusal by the respondent to deduct and remit union dues contrary to section 19 of the Employment Act, 2007 and section 48 of the Labour Relations Act, 2007; refusal by the respondent’s management to sign recognition agreement contrary to section 54 of the Labour Relations Act, 2007; intimidation of employees; non implementation of the minimum wage of the legal notice No.116 published in Kenya Gazette Supplement No.19 of 26. 06. 2015. The claimant prayed for:

1) The Honourable Court to find that the respondent is in fundamental contravention of law and be ordered to immediately effect deductions and remittance of union dues to the claimant union into its bank account No. 01120162958200, Co-operative Bank, Kusco Building Branch, Kilimanjaro Road, Nairobi.

2) That the respondent be ordered to pay the union arrears to the claimant union from July 2015.

3) That the respondent be ordered to show compliance to the general order of the minimum wage schedule 2015 and immediately pay the arrears arising out of the underpayment of wages.

4) The respondent be further ordered to enter into recognition agreement within 7 days, in order to commence negotiations of collective bargaining agreement (CBA) immediately within 60 days to safeguard the right of claimant’s members.

5) That the costs of the proceedings be paid by the respondent.

The claimant’s case is based upon the following grounds:

1) The claimant has recruited 147 of the respondent’s employees being 90% of the unionisable employees in the respondent’s establishment and therefore complied with the majority rule per the Labour Relations Act, 2007.

2) The claimant has served the duly signed form S upon the respondent for the check off system to apply on deduction and remission of union dues effective 15. 07. 2015, 27. 07. 2015, 04. 08. 2015, and 19. 08. 2015 as per sections 48, 49, and 50 of the Labour Relations Act, 2007.

3) The claimant has sought to sign recognition agreement in accordance with section 54 of the Labour Relations Act, 2007 as per the letter dated 15. 07. 2015 and a draft recognition agreement has been served upon the respondent but the respondent has refused to sign or meet the claimant.

4) The respondent has threatened to terminate the services of the claimant’s members in its employment and the employees are now held on 6 months’ contracts effective January 2015. The respondent is harassing, intimidating and arm twisting the employees for joining the trade union.

The respondent filed the response to the memorandum of claim on 05. 11. 2015 through Otieno –Omuga & Ouma Advocates. The respondent prayed that the claimant’s suit should be dismissed with costs. The respondent urged that the claimant had not recruited 50% of the employees eligible to join the trade union.

On 31. 05. 2018 the respondent informed the Court that it was not opposed to the prayers made for the claimant except the prayers thus:

1) That the respondent be ordered to pay the union arrears to the claimant union from July 2015.

2) The respondent is further ordered to enter into recognition agreement within 7 days, in order to commence negotiations of collective bargaining agreement (CBA) immediately within 60 days to safeguard the right of claimant’s members.

Parties have filed submissions on the two prayers. On 02. 07. 2018, by consent of the parties, the documents filed for parties were admitted in evidence as filed in Court. The respondent filed submissions through Edwin Maina & Associates Advocates.

The 1st issue is whether the claimant is entitled to the union arrears from July 2015. The respondent’s case is that the claimant has failed to proof the case because the claimant failed to call a witness. It is submitted for the respondent that under section 107 of the Evidence Act, the claimant had to prove the alleged facts because the burden of proof rested on the claimant as provided under the section. Further, under section 80 of the Evidence Act, the burden of proof as to any particular fact rested on the person who wishes the Court to believe in its existence, unless it is provided by law that the proof of that fact shall lie on any particular person. The respondent’s evidence was that they were willing to deduct union dues but the arrears were denied. Further the respondent was in an enterprise based upon time bound projects so that the respondent could only pay for current staff. It will therefore be oppressive to require the respondent to pay arrears of union dues that are at large. The Court has considered the respondent’s case and finds that indeed the quantum of the arrears was not pleaded in the statement of claim and even the claimant’s submissions do not attempt to quantify the arrears. The Court holds that the arrears were special damages and they ought to have been strictly pleaded and proved but the claimant failed to discharge the burden as submitted for the respondent. The prayer will therefore fail.

The respondent confirmed that it was deducting and remitting union dues effective end of April 2018 and it was ready to continue with the deduction and the Court returns that the parties will be entitled to a declaration in such terms towards balanced justice in the matter.

The Second issue for determination is whether the claimant is entitled to conclusion of the recognition agreement and the CBA as prayed for. The evidence was that in 2015 the claimant had recruited 392 unionisable employees out of the respondent’s eligible 1000 employees. As at the hearing of the case the respondent testified that it had 550 eligible employees and the claimant had recruited 75 employees.

The Court has considered the material on record. In 2015 the claimant recruited members as per the form S filed in Court. The affidavit of Stephen Kamau filed on 05. 11. 2015 for the respondent confirms that many employees joined the union and later sought to cease being members of the union. While testifying that the respondent had 1000 employees in 2015, the evidence for that position has not been coherently shown to have been the case in 2015. Throughout the correspondence between the parties, the evidence was that the parties were willing to conclude the recognition agreement and the respondent did not raise the issue of the claimant failing to meet the simple majority rule. On a balance of probability the Court returns that the claimant has established that it recruited the simple majority of the unionisable employees in 2015 and the claimant is entitled to conclude a recognition agreement with the respondent.

As the claimant has substantially succeeded in the claim, the respondent will pay the claimant’s part of the costs of the proceedings fixed at Kshs.100, 000. 00.

In conclusion judgment is hereby entered for the claimant against the respondent for:

1) The respondent to deduct union dues and remit the same to the claimant union into its bank account No. 01120162958200, Co-operative Bank, Kusco Building Branch, Kilimanjaro Road, Nairobi effective end of April 2018 and to continue doing so on monthly basis with respect to all unionisable employees being the claimant’s members.

2) The declaration that the respondent shall comply with the statutory minimum wages prevailing from time to time and as applicable to its employees.

3) The respondent to enter into recognition agreement with the claimant by 01. 09. 2018 in order to commence negotiations of collective bargaining agreement (CBA) immediately and to negotiate in good faith to conclude a collective agreement by 01. 12. 2018 towards safeguarding the rights of claimant’s members in the respondent’s employment.

4) The respondent to pay the claimant’s partial costs of the suit fixed at Kshs.100, 000. 00 by 01. 09. 2018 failing interest to be payable thereon from the date of this judgment till full payment.

Signed, datedanddeliveredin court atNairobithisTuesday 31st July, 2018.

BYRAM ONGAYA

JUDGE