[2018] KEELRC 521 (KLR)
The Court found that, due to the significant lapse of time since the recruitment forms were completed and the dynamic nature of union membership, it would not be prudent to rely on outdated evidence to determine the current level of union representation. The Court emphasised the need for up-to-date verification of...
Source-derived case information.
- Citation
- [2018] KEELRC 521 (KLR)
- Parties
- Applicant: Kenya Hotels & Allied Workers Union; Respondent: Zomeni Lion Hill Camp
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1561 of 2012
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Ballot ordered to determine current union membership; no order as to costs.
- Judges
- MSA Makhandia
- Legal Topics
- Union Recognition, Union Dues Deduction, Victimisation of Union Members
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Hotels & Allied Workers Union
Applicant
Zomeni Lion Hill Camp
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the Respondent refused to deduct and remit union dues as required by law.
- 2 Whether the Respondent failed to sign a recognition agreement with the Union.
- 3 Whether the Respondent victimised members of the Union.
Ratio Decidendi
The Court found that, due to the significant lapse of time since the recruitment forms were completed and the dynamic nature of union membership, it would not be prudent to rely on outdated evidence to determine the current level of union representation. The Court emphasised the need for up-to-date verification of union membership to ensure compliance with statutory thresholds for recognition. Accordingly, the Court ordered a fresh ballot to be conducted by the County Labour Officer to establish the current number of unionisable employees who have joined the Union, with access to the Respondent's premises to be granted for this purpose. This approach balances the rights and interests of...
Court Disposition
Ballot ordered to determine current union membership; no order as to costs.
Orders
- County Labour Officer for Taita Taveta to conduct a ballot to establish how many of the Respondent’s unionisable employees have joined the Union.
- Respondent to allow access to both the County Labour Officer and the Union to its premises without hindrance for the purposes of conducting the ballot.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 1561 OF 2012
KENYA HOTELS & ALLIED WORKERS UNION....CLAIMANT
v
ZOMENI LION HILL CAMP...................................RESPONDENT
JUDGMENT
1. The Kenya Hotels & Allied Workers Union (the Union) instituted proceedings against Zomeni Hill Lion Camp (the Respondent) on 4 September 2012 (amended Memorandum of Claim was filed on 2 December 2013) and the issue in dispute was stated asRefusal by the Respondent to deduct and remit union dues and to sign recognition agreement and victimisation of the Claimant’s members
2. In terms of section 74 of the Labour Relations Act, disputes relating to recognition agreement ought to be accorded priority.
3. The rationale for this may be because recognition disputes implicate numbers at a particular point in time.
4. Some employees who have joined a Union may leave or cease being employees. The numbers do not remain constant and therefore in order to meet the threshold set out in section 54 of the Labour Relations Act, despatch on the part of the Court is expected.
5. It is obvious that there would be inherent risks when such disputes are not determined expeditiously.
6. In the instant case, the recognition dispute has been in the Court system for about 8 years. It would therefore not be prudent for the Court to rely on recruitment/form S carried out nearly a decade ago.
7. As the Court of Appeal stated in Civicon Ltd v Amalgamated Union of Kenya Metal Workers (2016) eKLR, recognition disputes require full cooperation, full disclosure and utmost good faith on the part of the employer.
8. In order to balance the rights and interests of the parties considering the time lapse and do justice, the Court will therefore order and direct that
(a) County Labour Officer for Taita Taveta conduct a ballot to establish how many of the Respondent’s unionisable employees have joined the Union.
(b) The Respondent to allow access to both the County Labour Officer and the Union to its premises without hindrance for the purposes of conducting the ballot.
(c) The County Labour Officer to file a report with the Court within 45 days.
9. No order as to costs.
Delivered, dated and signed in Nairobi on this 30th day of November 2018.
Radido Stephen
Judge
Appearances
For Union Mr. Simiyu, Deputy Secretary General, Kenya Hotels & Allied Workers Union
For Respondent Kinyua Muyaa & Co. Advocates
Court Assistant Lindsey