[2016] KEELRC 1574 (KLR)
The court held that while section 62(3)(a) of the Labour Relations Act prescribes a 90-day period for reporting a trade dispute concerning dismissal, section 62(3)(b) expressly empowers the Cabinet Secretary, Labour, to accept disputes reported outside this period if cause is shown. In this case, the Cabinet...
Source-derived case information.
- Citation
- [2016] KEELRC 1574 (KLR)
- Parties
- Applicant: Kenya National Private Security Workers Union; Respondent: Lavington Security Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 318 of 2015
- Procedural Posture
- Cause / Ruling on Preliminary Objection (motion to Strike Out Claim)
- Outcome
- preliminary objection dismissed
- Judges
- MSA Makhandia
- Legal Topics
- Trade Dispute Reporting, Unfair Dismissal, Statutory Time Limits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya National Private Security Workers Union
Applicant
Lavington Security Limited
Respondent
Procedural Posture
Cause / Ruling on Preliminary Objection (motion to Strike Out Claim)
Legal Issues
- 1 Whether the claim is barred for failure to report the trade dispute within 90 days as required by section 62(3)(a) of the Labour Relations Act.
- 2 Whether the Cabinet Secretary, Labour, can accept a dispute reported outside the 90-day period under section 62(3)(b) of the Labour Relations Act.
Ratio Decidendi
The court held that while section 62(3)(a) of the Labour Relations Act prescribes a 90-day period for reporting a trade dispute concerning dismissal, section 62(3)(b) expressly empowers the Cabinet Secretary, Labour, to accept disputes reported outside this period if cause is shown. In this case, the Cabinet Secretary accepted the dispute and appointed a Conciliator, who issued a certificate of unresolved dispute. The court found no basis to question the Cabinet Secretary's acceptance of the dispute, as he is presumed to have acted in accordance with the law. The Respondent's objection to the claim on grounds of late reporting was therefore without merit.
Court Disposition
preliminary objection dismissed
Orders
- The Respondent's objection is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 318 OF 2015
KENYA NATIONAL PRIVATE SECURITY WORKERS UNION.........CLAIMANT
V
LAVINGTON SECURITY LIMITED..................................................RESPONDENT
RULING
The Kenya National Private Security Workers Union (Union) commenced legal proceedings against Lavington Security Limited (Respondent) and the issue in dispute was stated as refusal to pay Mr. Daudi Wajia his terminal dues.
The Respondent filed a Response and Notice of Motion on 11 December 2015.
This ruling relates to the motion to which the Union filed grounds of opposition on 11 January 2016.
The motion is to the effect that the cause of action being advanced by the Union on behalf of the Grievant is contrary to section 62(3)(a) of the Labour Relations Act, and therefore the Memorandum of Claim should be struck out.
Among the reasons advanced in support of the motion are that the Grievant was dismissed on 1 December 2014, but the report to the Cabinet Secretary, Labour was made only on 16 July 2015, some 7 months after the dismissal instead of within 90 days as stipulated by section 62(3)(a) of the Labour Relations Act.
The Union in opposing the motion urged that section 62(3)(a) of the Labour Relations Act should be read together with section 62(3)(b) of the Act which permits the Cabinet Secretary to accept disputes concerning unfair dismissals outside the stipulated time, on cause being shown.
The Cabinet Secretary, Labour accepted the report of a trade dispute by the Union through a letter dated 17 September 2015 and appointed a Conciliator.
The Concilator issued a certificate of unresolved trade dispute on 15 October 2015, hence the present proceedings.
Section 62(3)(b) of the Labour Relations Act permits the Cabinet Secretary, Labour to accept a dispute concerning dismissal outside the 90 days period prescribed.
The Cabinet Secretary is not a party to these proceedings. Nevertheless, what is clear is that he accepted and admitted the dispute reported by the Union. Whether the Union showed cause is at large, and cannot be determined on the basis of the material placed before Court.
However, the Court is entitled to presume that the Cabinet Secretary, Labour, is aware of the provisions of the aforesaid law and exercised his mind accordingly before accepting the dispute.
Any challenge to the acceptance of the dispute should have involved the Cabinet Secretary, or should have been placed at the first instance before the Chief Industrial Relations Officer,who acted on behalf of the Cabinet Secretary or the Conciliator.
The objection by the Respondent therefore has no merit and is dismissed with no order as to costs, considering the parties herein are laymen.
The Respondent also raised questions about the competence or locus of the Union to represent the Grievant when there was no evidence of his membership of the Union.
That discussion must wait an appropriate time.
Delivered, dated and signed in Nakuru on this 11th day of March 2016.
Radido Stephen
Judge
Appearances
For Union Mr. Onwonga, Industrial Relations Officer, instructed by Kenya National Private Security Workers Union
For Respondent Mr. Edwin Kipruto, Branch Manager, Lavington Security Ltd
Court Assistant Nixon