[2021] KEELRC 1780 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. E718 OF 2020

KENYA UNION OF COMMERCIAL FOOD AND

ALLIED WORKERS...........................................CLAIMANT/APPLICANT

VERSUS

MARUTI OFFICE SUPPLIES LIMITED....................1ST RESPONDENT

SAPPHIRE CONSULTANTS........................................2ND RESPONDENT

RULING

1. The application dated 5/11/2020 was filed on the even date by the Claimant/Applicant Union seeking for the following reliefs:-

(i) This application be certified urgent, service thereof be dispensed with and the same be heard ex parte in first instance.

(ii) That pending hearing and determination of this matter, this Honourable Court do and hereby restrain the 1st Respondent from terminating the services of their employees with intention to transfer their services to an outsourcing company.

(iii) Pending hearing and determination of this matter, this Honourable Court do and hereby restrain the 2nd Respondent from taking over the services of employees with a direct employment contract with the 1st respondent.

(iv) Pending hearing and determination of this Application this Honourable Court to and hereby grant status quo as at the date of the orders of this Court in terms of employees employment relationship with the 1st respondent and to preserve such employment relationship until further orders of the Court.

(v) Pending the hearing and determination of this application, this Honourable Court do and hereby restrain the 1st Respondent from victimizing, coercing, intimidating, terminating or disciplining employees on account of their union membership.

(vi) Pending hearing and determination of this matter, this Honourable Court do and hereby orders the 1st Respondent to continue assigning duties to its employees and discharging its management role on its employees until further orders of the Court.

(vii) An Order do and is hereby issued directing the 1st Respondent to deduct and to remit union dues from their employees who have already acknowledge their union membership by signing the requisite check off sheets.

(viii) Costs of this application be in the cause.

2. The application is premised on the grounds set out on the face of the Notice of Motion and in the supporting affidavit of Mike Onaya the Assistant Secretary General of the claimant that may be summarized that on 3/7/2020, the 1st respondent’s unionisable employees registered trade union membership with the claimant union and the 1st respondent was served with check-off sheets on 29/9/2020 to effect deductions and remittance of union dues.

3. On 1/10/2020, the Claimant wrote to the 1st respondent, again on the matter and enclosed a draft Recognition Agreement for their study and counter signatures and a joint meeting was proposed to take place on 7/10/2020 for introduction and to sign the Draft Recognition Agreement.

4. The 1st respondent declined the meeting without giving any reasons andthe claimant wrote to the 1st respondent again on 8/10/2020 regarding the matter.

5. On 14/10/2020, the claimant reported a dispute to the Ministry of Labour for conciliation on refusal to deduct union dues and to recognize the claimant union.

6. On 20/10/2020, the 1st respondent’s employees received a questionnaire distributed by the 2nd respondent requesting them to give their personal details and indicating the intention to transfer their services to the 2nd respondent and no reason was given for that move other than their trade union membership.

7. That the 1st respondent has clearly hatched a scheme to terminate and to relinquish employment relationship between them and their employees to run away from Trade Union representation.

8. That the 2nd respondent has connived with the 1st respondent in that unlawful intent to frustrate Trade Union representation.

9. That the 2nd respondent is gearing to issue employees of 1st Respondent with letters of contract requiring them to accept the new terms of service with the sole purpose of scuttling trade union representation.

10. That already employment of five (5) employees have been terminated while three (3) others have been served with warning letters and may soon be terminated.

11. That the suit shall be rendered nugatory if interim orders are not granted.

12. That the Court do grant the interim reliefs sought.

13. The respondent filed replying affidavit by Jignesh Jasani the Managing Director of the 1st respondent deposed to on 2/12/2020 in which he deposes that on 1/10/2020, the 1st respondent wrote to the County Labour office, Nairobi County notifying the office of an intended organizational restructuring by the 1st respondent. That the 1st respondent informed the Labour office that it intended to begin the redundancy process with effect from 1/11/2020. The letter is attached to the replying affidavit marked ‘JJ 1”.

14. That the 1st respondent admits having received the union’s letter dated 29/9/2020 but the same was received on 5/10/2020.

15. That the 1st respondent admits having received the union’s letter dated1/10/2020 on 7/10/2020 which requested for a meeting with the union the same day at 2. 30 p.m.

16. That the deponent believes that both letters by the union were backdated to stop the redundancy process that had been started by the 1st respondent on 1/10/2020.

17. That the Check-off sheets are signed by 28 of its employees on 3/7/2020 yet the union wrote to the 1st respondent on 7/10/2020 seeking recognition, a period of three months later.

18. The respondent denies that it declined to allow the meeting on 7/10/2020 at 2. 30 p.m but rather the notice was short to hold the meeting and the 1st respondent wrote to the union requesting for 30 days to consult. Letter of request is attached and marked “JJ 3. ”

19. The 1st respondent denies that it intends to terminate employment of the employees recruited by the union and or hand them over to the 2nd respondent as alleged by the union.

20. The 1st respondent states that the intended redundancy is due to loss of business which is stationary in nature caused by the prolonged closure of all learning institutions since March, 2020 as well as massive decline in office stationery purchase due to many company employees working remotely and with little business in sectors such as hospitality. Statement of account are attached marked “JJ 4. ”

21. That the employees with disciplinary matters are not connected at all to the issue of unionization. The 1st respondent denies that it intends to issue employees with new letters of offer as alleged or at all.

22. The 1st respondent also denies that it intends to transfer the services of its employees to the 2nd respondent and puts the applicant to strict proof thereof.

23. The 1st respondent states that it believes that this period the Country is afflicted with COVID-19 is not ideal time for the 1st respondent to engage in Recognition and Collective Bargaining Agreements due to the economic impact COVID-19 has had on its operations.

24. That the application lacks merit and it be dismissed.

25. Both parties filed written submissions. The issue for determination is whether the Applicant has satisfied the requirements for grant of interim injunction pending the hearing and determination of the suit as set out in the case of Giella –vs- Cassman Brown and Company Limited [1973] E.A. 358 that, an applicant must show a prima facie case with a probability of success; secondly, the applicant must demonstrate that it is likely to suffer irreparable harm that is not remediable by damages if the suit is eventually successful and in case of doubt the Court to weigh balance of convenience in the exercise of its discretion to grant interim relief.

26. The respondent cited the case of Kenya Union of Commercial, Food and Allied Workers’ –vs- Kenya Credit Traders Ltd. [2019] eKLR 42 where Makau J. stated as follows:-

“It therefore follows that the suit herein ought not to have been brought until the Conciliation process was exhausted as required under Section 73 of the Act.”

27. It is common cause that this dispute was referred to the Ministry of Labour for conciliation by the applicant union on 14/10/2020.

28. It is also common cause, that the applicant union has not furnished the Court with the progress made in respect of that Conciliation exercise before filing the suit on 5/11/2020 a few weeks later.

29. Section 73 of the Labour Relations Act provides:-

“(1) If a trade dispute is not resolved after conciliation, a party to the dispute may refer it to the industrial Court in accordance with the Rules of the Industrial Court.

30. Section 74 of the Act, thereof also provides:-

“A trade union may refer a dispute to the industrial Court as a matter of urgency if the dispute concerns:-

(a) The recognition of a trade union in accordance with Section 62; or

(b) A redundancy where:-

(i) the trade union has already referred the dispute for conciliation under Section 62(4); or

(ii) the employer has retrenched employees without giving notice;

or

(iii) Employers and employees are engaged in an essential service.”

31. The present dispute concerns recognition of a trade union and was rightly brought before the Court by the applicant seeking interim orders to preserve the status quo pending the hearing and determination of the suit. The interim orders may also be granted pending conclusion of the commenced conciliation process.

32. The interim orders sought are not with regard to the issue of recognition as such but are meant to stop alleged victimization, intimidation, termination or disciplining of employees on account of their membership to the union. The Court is also urged to injuct intended transfer of these employees to the 2nd respondent by the 1st respondent to avoid unionization of its employees.

33. The 1st respondent has denied that it intends to terminate, transfer, victimize, or discipline the 28 employees recruited by the union on account of their membership.

32. The 1st respondent has also indicated that it deems the COVID-19 period as inappropriate for its employees to engage in union activities due to the economic and operational hardships presented to the enterprise by the pandemic.

33. Furthermore the 1st respondent has deposed that these union activities were commenced to obviate the 1st respondent’s already commenced retrenchment process notified by the 1st respondent to the Labour office on account of the economic difficulties posed to the enterprise by the COVID-19 pandemic.

34. It is the Court’s considered finding that the applicant has failed to establish a prima faciecase with a probability of success regarding the specific matters in respect of which the interim injunction is sought.

35. The dispute of recognition and deduction of union dues, which in terms of Section 74 of the Labour Relations Act, may be brought to Court on a Certificate of Urgency cannot attract any interim relief pending resolution of disputes of fact, on their merit upon hearing and determination of the main suit. This dispute ought to be prioritized as dictated under Section 74 of the Labour Relations Act, 2007.

36. In the final analysis, the application for grant of interim injunction pending the hearing and determination of the suit lacks merit and is dismissed with costs in the cause.

Dated and delivered at Nairobi this 29th day of April, 2021.

MATHEWS N. NDUMA

JUDGE

ORDER

In view of the declaration of measures restricting court of operations due to the COVID-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 15th March 2020, this ruling has been delivered to the parties online with their consent. They have waived compliance with Order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 18 of the Civil Procedure Act (chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.

MATHEWS N. NDUMA

JUDGE

Appearance

Mr. Macharia for Claimant/Applicant

Isaack Owuor for 1st respondent

Ekale – Court clerk.