[2023] KEELRC 3161 (KLR)

Kenya Union of Domestics, Hotels, Educational Institutions And Hospital Workers v Board of Management Kolanya Girls National School (Employment and Labour Relations Cause 6 of 2023) [2023] KEELRC 3161 (KLR) (30 November 2023) (Judgment)

Neutral citation: [2023] KEELRC 3161 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Bungoma

Employment and Labour Relations Cause 6 of 2023

JW Keli, J

November 30, 2023

Between

Kenya Union of Domestics, Hotels, Educational Institutions And Hospital Workers

Claimant

and

Board of Management Kolanya Girls National School

Respondent

Judgment

1. The Claimant is a trade union registered and recognised under the Laws of Kenya to represent domestic workers, non-teaching staff in schools, non-medical workers in hospitals and workers in the hotel industry.

2. The Claimant on 15th June 2023 filed the Statement of Claim dated 13th June 2023 supported by the Verifying affidavit sworn on even date by the Claimant’s Industrial Relations Officer, Antonio Shiraku.

3. The suit had been triggered by the failure by the Respondent to sign the recognition agreement and the alleged failure by the Conciliator to call parties for conciliation. Vide the Statement of Claim, the Claimant has prayed for the following reliefs:a.That the Honourable court in the spirit of Social Transformation through Administration of Justice compels the respondent to sign the forwarded recognition agreement to allow for negotiation of a Collective Bargaining Agreement pursuant to Sec 54 Labour Relations Act, 2007. b.That the Honourable Court directs the Respondent to stop harassment, intimidation and coercion the union members on the account of their membership.c.That the costs of this application be awarded to the claimantd.Any other relief the court deems fit.

4. Also filed together with the Statement of Claim dated 13th June 2023 is the Claimant’s list of witnesses dated on even date; a list of Documents of even date, and its bundle of documents.

5. The Respondent entered appearance through the Office of the Attorney General & Department of Justice and filed a Response to Claim dated 17th July 2023 and received in court on 20th July 2023. In addition the Respondent filed on even date its list of documents dated 17th July 2023 and the bundle of documents.

Written submissions 6. The court on 26th July 2023, with concurrence of the parties directed that the claim be canvassed by way of written submissions. The Claimant’s written submissions dated 4th September 2023 were filed by Justin Waningu Kamuye, a representative of the Claimant, on 11th September 2023. The Respondent’s submissions dated 27th September 2023 were filed by Gilbert Tarus , Senior State Counsel for the Office of the Attorney General on the 28th September 2023.

Claimant’s Claim 7. The Claimant states that the Respondent employed non-teaching staff in various capacities and the Respondent’s 38 non-teaching staff voluntarily joined the union through a signed check off system ( App.1- Pg. 9).

8. That the claimant forwarded the authority to deduct and remit dues to the Respondent through a a letter dated 6th April 2023(App-2 Pg10)

9. The Claimant proposed to conduct capacity building through a letter to the Respondent dated 25th May 2022(App 3-page 14), to which the Respondent replied through a letter dated 3rd June 2022 and demanded that the union visits the school to book for a date (App4-page 15).

10. On the 23rd June 2022 the union visited the Respondent’s school and after lengthy discussions the Respondent claimed the union had coerced members to join the union contrary to the members’ own volition. That the Claimant explained to the management the correct position and further informed the management of signing of the recognition agreement and the subsequent negotiation of a Collective Bargaining Agreement(App5 page 16).

11. That the Claimant forwarded a recognition agreement to the Respondent pursuant to section 54 of the Labour Relations Act 2007 proposing to meet and sign the same on 21st October 2022. Further to that the Claimant clarified to the select committee of the Respondent that workers voluntarily joined the union.

12. That the Claimant visited the Respondent on the 21st October 2022 and educated the members. The Respondent promised to invite the claimant for signing for the recognition agreement but went silent. Members elected their shop floor representatives(App. 7 page 26).

13. That members further committed their voluntary union membership(App8 page 28).

14. That the claimant forwarded the name of the elected representatives on 5th December 2022 (App 9 page 30).

15. That the Respondent has since implemented the checkoff through remittance of union dues (App 10 Page 31).

16. That on the 5th October 2022 ,the Claimant reminded the Respondent of the promise to have the Recognition Agreement signed then proposed to meet the Respondent on the 31st January 2023.

17. That the Claimant’s Busia Branch Office visited the Respondent on 31st January 2023 but the management looked non-committed because the Claimant was kept waiting on the bench without any sign of commitment from 10. 43am to 4. 20pm . The Claimant left a note to that effect and requested the Respondent to revert but the Respondent went incommunicado (App 12-page 35).

18. That the Claimant’s Busia Branch Office reported the matter to the Claimant’s General Secretary on 10th March 2023(App 13-page 36).

19. That the Claimant reported the dispute to the Cabinet Secretary Ministry of Labour on the 14th March 2023.

20. That the Cabinet Secretary appointed a conciliator (Ms. Auma Agripina).

21. That the Claimant submitted a memorandum of trade dispute to the Conciliator (app. 16 page 39).

22. The claimant claims that the conciliator has failed to invite parties for a conciliation pursuant to Section 67(1)of LRA which requires the appointed conciliator to attempt to resolve the dispute within 30 days or such other period as may be agreed by parties and where the dispute is not resolved to issue a certificate that the dispute had not been resolved.

23. The claimant submits that under Article 36 and 41 of the Constitution, people have a right to association and workers a right to join a trade union respectively, and the same cannot be curtailed. The Claimant submits that the Respondent is trying to avoid the Recognition agreement yet the claimant has negotiated similar agreements with other institutions.

24. The Claimant submits that the failure to recognise the Claimant will jeopardise efforts to organise and enter into a collective bargaining agreement which is anchored in the ILO Conventions Nos. 087 and 098. The Claimant asserts that by virtue of Legal notice No. 263 of 26th August 1993, issued under the Education Act, Cap 211, individual Boards of Management are advised to enter into recognition agreements, and since its members pay dues without recognition, they cannot represent them.

Respondent’s Response 25. The Respondent in its response to the claim admitted it has employed non-teaching staff.

26. The respondent denies that 38 of its non-teaching staff voluntarily joined the Claimant’s union through checkoff system and contends that the it is the Claimant who coerced the Respondent’s non-teaching staff to join the union.

27. The Respondent denied having received the check off to deduct dues or the visit request as alleged in paragraph ,6 and 7 of the claim.

28. The Respondent submits that the claim is premature as the Claim between it and the claimant is yet to be resolved by the Conciliator which is a requirement before the parties approach the court.

29. The respondent submits that it has not harassed intimidated nor coerced any non-teaching staff or any member of the Claimant’s union . In support of this position the Respondent filed witness statements of 3 of its staff who denied the allegations of harassment.

30. The respondent prayed for the claim to be dismissed with costs.

Determination Issues for determination 31. The claimant identified the following issues for determination:-a.Whether the Respondent should sign the recognition agreement.b.Whether the Hon. court should order the Respondent to stop harassment, intimidation and coercion of union members on account of their union membershipc.Whether the claim was filed prematurely.d.Whether the Respondent should pay costs of the suit.

32. The Respondent identified the following issues for determination:-a.Whether the claim is premature.b.Whether the claimant is entitled to the orders sought.c.Whether the claimant is entitled to costs.

33. The court having considered the parties’ submissions and the facts opines the issue in determination of the dispute are:-a.Whether the claim is premature and whether the claimant’s members have been harassed by the Respondentb.Whether the Claimant is entitled to the orders sought.

Issue a. Whether the claim is premature? 34. The issue whether a suit is premature goes to the question whether the court’s jurisdiction was properly invoked.

35. The Claimant referred a trade dispute to the Cabinet Secretary, Ministry of Labour and Social Protection on March 14, 2023, after the respective parties had attempted to agree on the execution of the Recognition agreement via written communication and physical meetings, but to no avail.

36. A Conciliator, Ms. Auma Agripina, was appointed vide the letter of 12th April 2023 , through which letter the parties were directed to file their respective proposals within seven days from the date of the said letter.

37. Section 67 of Labour Relations Act(LRA) provides that a Conciliator shall attempt to resolve the trade dispute referred to in section 65(1) within (a) thirty days of the appointment; or (b) any extended period agreed to by parties to the trade dispute.

38. The Claimant argues that the conciliator did not invite parties to conciliation within 30 days nor did the parties extend the said period. The claimant argues that due to the plight of its members who were being harassed by the Respondent to withdraw their membership from the Claimant, it exercised due diligence, filed its Memorandum of dispute and due to the delays in the conciliation, invoked the court process.

39. The Respondent on the other hand submits that, the dispute was before the conciliator for conciliation and before the same was finalised the Claimant brought the present suit. The Respondent states that the conciliator recommended that the claimant undertakes a Capacity building exercise, and that there is no evidence of unresolved dispute. The Respondent argues that the matter be referred to the conciliator to resolve.

40. The letter appointing the conciliator stated that the said memorandum of dispute was to be filed by each party within seven days from 12th April 2023. As at 18th April 2023, when all parties were to file their respective memoranda, none of them had filed. The claimant filed its memorandum of dispute on 11th May 2023(App 16 pg.39 of claim).There was no evidence whether the Respondent filed its memorandum before the Conciliator.

41. The claimant proceeded and filed the present suit on 15th June 2023, suspending the progress of any Conciliation process.

42. By virtue of Section 67 of LRA, the Conciliator can only resolve a dispute which has been filed before him or her; which is the Memoranda to be filed by the respective parties. It is once the parties have filed their respective issues in dispute that a conciliation process can begin as the Conciliator cannot help parties resolve a dispute without having a summary of each party’s issue in dispute.

43. Whether or not the Respondent filed its own Memorandum, the Conciliator mandate to conciliate the dispute is within Thirty days or more as the case may be. Indeed 30 days had lapsed and the Conciliator had not resolved the dispute.

44. Section 69 of LRA provides that a dispute is deemed unresolved after conciliation if:-a.Conciliator issues a certificate that the dispute has not been resolved by conciliation or; b.the Thirty days’ period from appointment of conciliator or any longer period as agreed by the parties expire.

45. When the Claimant filed the Memorandum of dispute on 11th May 2023, the Conciliator had thirty days within which the parties could be heard. The claim having been filed on 15th June 2023 the 30 days had lapsed.

46. By virtue of Rule 5(3) of the Employment and Labour Relations Court (Procedure) Rules 2016 , if conciliation has not taken place, the statement of claim is to be accompanied by an affidavit sworn by the claimant or by the representative of that claimant attesting to the reasons why conciliation has not taken place.

47. There was no affidavit sworn by the representative of the claimant attesting to the reasons why conciliation has not taken place. The provisions of Rule 5(3)(supra) are couched in mandatory terms to require that where a dispute was referred to conciliation and the conciliation does not take place, aside from the Statement of Claim filed, a separate affidavit be sworn attesting the reasons why the conciliation did not take place. There was no affidavit filed by the Claimant to this extend.

48. In view of the foregoing, the court discerned that the conciliation process was pending. By dint of the Employment and Labour Relations Court (Procedure) Rules, 2016, Rule 5 which requires that where a dispute has been subject of conciliation, the Claim shall be accompanied by Conciliator’s Report, Certificate of Conciliation or an Affidavit sworn by the Claimant, attesting to the reasons why Certificate of Conciliation has not issued, the same are not available. The issue cannot be properly adjudicated upon by the Court, while it is pending the consideration of the Conciliator. (emphasis given)

49. Article 159(2) of the Constitution stipulates that in exercise of judicial authority, the Court shall promote alternative forms of dispute resolution. It is the opinion of the court that once a Party has invoked the conciliation Mechanisms under the Labour Relations Act section 65, that Party must exhaust those mechanisms, before coming to Court. It is improper for the Claimant to abandon the conciliation process mid-stream, and initiate judicial process. The Respondent did not even prompt the Conciliator to state that it was abandoning the conciliation process. In this dispute, there is an ongoing conciliation process. The Conciliator has not issued any Certificate, to indicate failure of conciliation. It is not known if in the end, Parties will record settlement.

50. The Court is guided by the Court of Appeal in Karen Blixen Camp Limited v Kenya Hotels and Allied Workers Union [2018] eKLR(Waki, Makhandia & Gatembu, JJ.A) in allowing a statement of claim to be heard without finalizing the conciliation process held that:-“17. In this case, the respondent took the option of reporting the matter to the Minister although it would have been perfectly entitled to proceed to court directly. The dispute would have been resolved possibly within 90 days if the time table set out in section 62 to 72 was followed. But it was not and the Minister was responsible for frustrating the time table. There is no provision in the Act on what happens when the Minister so behaves. One way, not the only way as suggested by the appellant, was for the ELRC to entertain a petition for an order of mandamus to compel the Minister to Act. But that option would be about procedural propriety only and would entail further costs and delay in agitating the actual claim.” The Court of Appeal recognized that the ELRC Court has the jurisdiction where a fair administration procedure has not been followed in a dispute relating to employment and labour relations, to exercise such powers including the issuing of an order of mandamus to compel the Minister to Act. The Court of Appeal considered the issue of costs and the long delay in the said suit which had been pending for seven years in declining to order the minister to finalize conciliation, which is not the case in the present suit. The instant case was filed on 15th June 2023 hence timely for return to the conciliation process.

51. In the upshot, considering that the Claimant abandoned the conciliation process even before the same commenced and there being no evidence before the court that its members were harassed by the Respondent, I am of the opinion that the Claim herein is premature and improperly brought before the Court. The Claimant ought to have complied with Rule 5 of the Court to justify why it was abandoning the conciliation process. This not-withstanding the 30 days had lapsed. The Court finds that the Claimant had also not complied with the timelines in filing it memoranda with the Conciliator. The letter forwarding the alleged memoranda to the Conciliator(App16 ) is on an original letter head and not even stamped as received creating doubts to the court whether it was received by the Conciliator. The foregoing leads me to conclude that the instant suit is premature for abandoning The conciliation process unprocedurally.

Issue b). Whether the Claimant is entitled to the orders sought. 52. The Claimant had sought for:-1. That the Honourable court in the spirit of Social Transformation through Administration of Justice compels the respondent to sign the forwarded recognition agreement to allow for negotiation of a Collective Bargaining Agreement pursuant to Sec 54 Labour Relations Act, 2007. 2.That the Honourable Court directs the Respondent to stop harassment, intimidation and coercion the union members on the account of their membership.3. That the costs of this application be awarded to the claimant4. Any other relief the court deems fit.

53. The court recognizes the right of the employees to join unions and to enjoy the benefits on unionization offered by the union which include representation at shop floor and collective bargaining. The right is anchored in international law, the Constitution and statutes. See Article 8 International Covenant on Economic, Social and Cultural Rights:-‘’1. The States Parties to the present Covenant undertake to ensure:(a)The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;’’ ;The International Labour Organization Convention 87 (1948), Right to Organize and Collective Bargaining: Convention 98 (1949); Article 41 of the Constitution to wit:’’1)Every person has the right to fair labour practices.(2)Every worker has the right—(a)to fair remuneration;(b)to reasonable working conditions;(c)to form, join or participate in the activities and programmes of a trade union; and(d)to go on strike.(3)Every employer has the right—(a)to form and join an employers organisation; and(b)to participate in the activities and programmes of an employers organisation.(4)Every trade union and every employers’ organisation has the right— (a) to determine its own administration, programmes and activities; (b) to organise; and (c) to form and join a federation.(5)Every trade union, employers’ organisation and employer has the right to engage in collective bargaining.’’The Labour Relations Act section 4 to wit:-’ 4. Employee’s right to freedom of association(1)Every employee has the right to—(a)participate in forming a trade union or federation of trade unions;(b)join a trade union; or and5. ‘’Protection of employees(1)No person shall discriminate against an employee or any person seeking employment for exercising any right conferred in this Act.’’

54. The court finds Conciliation is a suitable mechanism for resolution of trade disputes specifically the instant dispute on the recognition of the union by the Respondent.

55. Considering that the Conciliation process was not finalized and is pending and in the spirit of promoting alternative forms of dispute resolution in the exercise of judicial authority encompassed in Article 159(2) of the Constitution, the Court orders the parties to comply and exhaust the procedure on conciliation under section 65-69 of the Labour Relations Act.

56. The Claimant did not produce any evidence that any of its members have been harassed or intimidated due to their membership, and in any event the Respondent transmitted union fees (pg.31 of claim) from the claimant’s members to the Claimant.

Conclusion 57. The claim is declared premature and dismissed. Each party to bear own costs.

58. The Court having found the claim premature on basis of the pending conciliation process hereby orders the parties to appear before the appointed Conciliator on the 16th December 2023 at 10 AM morning hours for the conciliation process and for the appointed Conciliator to conclude the conciliation on the issue of recognition within 30 days after the first meeting.

59. It is so ordered.

DATED, SIGNED & DELIVERED IN OPEN COURT AT BUNGOMA THIS 30TH NOVEMBER 2023. JEMIMAH KELI,JUDGE.In The Presence Of:-For Claimant : KamuyeFor Respondent:- Absent