[2018] KEELRC 1173 (KLR)
The court found that the dispute was referred to court prematurely and unprocedurally, as the conciliation process before the Ministry of Labour had not been completed and the rival union, KUDHEIHA, had not been involved in the process. The conciliator's report indicated doubts about the authenticity of the Claimant...
Source-derived case information.
- Citation
- [2018] KEELRC 1173 (KLR)
- Parties
- Applicant: Kenya Tertiary & Schools Workers’ Union - KETASWU; Respondent: The Board of Management, Nyakoiba Secondary School
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 40 of 2018
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim dismissed
- Judges
- MN Nduma
- Legal Topics
- Trade Union Dues, Recognition Agreement, Conciliation Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Tertiary & Schools Workers’ Union - KETASWU
Applicant
The Board of Management, Nyakoiba Secondary School
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the Respondent should be ordered to remit deducted and withheld trade union dues to the Claimant Union.
- 2 Whether the Respondent should be compelled to sign a Recognition Agreement with the Claimant Union.
- 3 Whether the suit was prematurely filed before completion of conciliation proceedings.
Ratio Decidendi
The court found that the dispute was referred to court prematurely and unprocedurally, as the conciliation process before the Ministry of Labour had not been completed and the rival union, KUDHEIHA, had not been involved in the process. The conciliator's report indicated doubts about the authenticity of the Claimant Union's membership and the withdrawal of employees from KUDHEIHA. In line with statutory requirements and established case law, the court held that the suit lacked merit due to failure to exhaust the conciliation process and dismissed the claim. The Claimant Union was advised to pursue the incomplete conciliation proceedings and involve KUDHEIHA for a final determination.
Court Disposition
claim dismissed
Orders
- The suit is dismissed for being prematurely filed before completion of conciliation.
- The Claimant Union may pursue the incomplete conciliation proceedings and involve KUDHEIHA.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
CAUSE NO. 40 OF 2018
(Before Hon. Justice Mathews N. Nduma)
KENYA TERTIARY & SCHOOLS WORKERS’ UNION - KETASWU...............CLAIMANT
VERSUS
THE BOARD OF MANAGEMENT, NYAKOIBA SECONDARY SCHOOL..RESPONDENT
J U D G M E N T
1. The Claimant vide a Statement of Claim filed on 14th February, 2018 seeks the following orders:-
a. An order directing the Respondent to remit all the deducted and withheld trade union dues for May 2017 to date.
b. Direct the Respondent to sign a Recognition Agreement with the Claimant Union within 14 days of judgment.
c. Costs of the suit.
Facts of the Claim
2. In the months of January and February 2016, the Claimant Union recruited and registered 35 unionsable employees of the Respondent through check-off forms dated 4th and 29th February, 2016 produced and marked ‘3’.
3. At all material time, the unionsable employees were deducted trade union dues in respect of their membership with the Claimant Union.
4. The Respondent acknowledges the said membership and union dues deductions and remitted the said dues to the Claimant Union twice through Cheques on 2nd June, 2016 and 27th February, 2017 being payment of union dues up to April, 2017.
5. Since May, 2017 the Respondent has deducted and withheld union dues. The Respondent demanded a court order to remit the dues to the union.
6. The union sent a copy of a Recognition Agreement to the Respondent with a request to sign the same. A copy is produced and marked ‘4’.
7. The Respondent prays that it be recognized having satisfied the requirements of section 54(1) of the Labour Relations Act and that Union dues be remitted accordingly.
Response
8. The Respondent filed a Memorandum of Response on 10th April, 2018 in which it denies the claim by the Applicant stating there is in existence a rival union called KUDHEIHA Union which claims the deducted union dues from the Respondent.
9. That there is no evidence that the unionisable employees have withdrawn from KUDHEIHA. That the documents presented by the Claimant Union are fake. That conciliation before the Minister for Labour has not been concluded and the suit is premature. That the suit be dismissed with costs.
Determination
10. A report by the conciliator, from Ministry of Labour Mr. C. I. Gondosio is based on submissions by the Respondent only the Claimant Union having failed to attend the conciliation process nor file a Memorandum to help the process of conciliation.
11. The conciliator concludes that the authenticity of the signatures in the check-off system is in doubt. It is therefore doubtful that the alleged members of Claimant Union had withdrawn from KUDHEIHA. Proper authentication may only be possible if the Claimant Union attends the conciliation process and submit its memorandum accordingly. Furthermore, KUDHEIHA is an existing union in the school and needs to be heard in the dispute.
12. The conciliator therefore declined to recommend the employer to recognize the Claimant Union and remit the union dues to it.
13. Following the decision by Maureen Onyango J. in Kenya Hotels & Allied Workers Union Vrs Ratna Tsavo Lodges & another [2012]eKLR,I find that this dispute was referred to court prematurely and unprocedurally. The report by the conciliator is testimony to this fact. For the aforesaid reasons, the suit lacks merit and is dismissed.
14. The Claimant union is at liberty to pursue the incomplete conciliation proceedings, and enlist KUDHEIHA in the reported dispute to allow a final determination of the matter.
Dated and Signed in Kisumu this 20th day of September, 2018
Mathews N. Nduma
Judge
Appearances
Japheth A. Agura for Claimant Union
Secretary Board of Management for Respondent
Chrispo – Court Clerk