[2018] KEELRC 49 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT OF KENYA

AT NAIROBI

CAUSE NO. 1748 OF 2013

(Before D. K. N. Marete)

KENYA UNION OF HAIR AND BEAUTY SALON WORKERS..........CLAIMANT

VERSUS

SANA INDUSTRIES CO. LIMITED....................................................RESPONDENT

JUDGEMENT

This matter was originated by a Memorandum of Claim dated 28th October, 2013. The issues in dispute are therein cited as;

1. Intimidating and Harassment of unionisable employees through frequent suspensions by the Respondent.

2. Victimizing and demoting union Representative Mr. Joseph Kangethe Kamande Secretary) and Alexander Mainah Onsongo (Chairperson) while executing their duties.

3. The unlawful alleged suspension/Termination of Joseph Kangethe Kamande and Alexander Mainah Ongong’o.

This matter is not defended or at all.

The matter is consolidated with Cause No.2053/2013 with this as the lead case.

This lead case is not specifically defended. No defence has been filed in respect to it.

However, the respondent in a Respondent Statement of Defence dated 7th May, 2018 in respect of the other consolidated case – Cause No.2053 of 2013 denies the claim and prays that this be dismissed with costs. I shall, for the purpose of the consolidated cases use this as the intended defence for both matters.

The claimant’s case is that the parties have a valid relationship through a mutual signing of a recognition agreement and CBA all in recognition of the workers rights as enshrined in the law and Constitution. The workers in turn have elected their representatives to enable them be represent them in improvement of terms and conditions of employment. They also participated in the drawing of the Collective Bargaining Agreement which was registered by this court on 10th October, 2013.

The two representatives further embarked on executing their duties by approaching the administrator, Ms Agnes where they jointly agreed to work together to end the confrontation that used to exist between the supervisors, top managers and workers and also ascertain a friendly resolution of industrial disputes through dialogue.

The claimant’s further case is that on 9th October, 2013, the grievants got wind that there were some workers who were suspended in one of the departments. They visited the area after work but instead of getting a brief from the supervisor Ms Maria, Mr. Choi the owner of the company emerged and ordered her to suspend/terminate their services.

The grievants services were terminated orally and reported the matter to the claimant who sought a joint meeting to resolve the issue. This was to no avail as Mr. Choi came with a fixed mind and insisted on the suspension/termination of the grievants. They were given the option of going to court. This was followed by frustration through demotion, harassment, intimidation and refusal to resume duty.

The claimant further case and submission come out as follows;

i) THAT the Respondent demonstrates that upon signing the C.B.A and registered is now turning round to frustrate the union activities in the company meaning is purely acting against the law (Labour Relations Act Section 4). The respondent could have embarked on implementing the C.B.A fully meaning to follow the laid down procedure in the Recognition Agreement signed by both parties.

ii) THAT the respondent failed to give the grievants the letters of suspension/termination is a sign of acting against the union activity in the company.

iii) THAT the Respondent through Mr. Choi refused to discuss the issue with the union officials citing that the respondents demonstrated that as no respect to the signed relationship with the applicant union and the law. Therefore, we argue that the respondents fall a short or respecting the law in that the respondents should be penalized for that kind of act. We feel that to frustrate the duly elected union representative is a way of robbing off workers their rights in law.

She prays as follows;

i) THAT the Respondent be ordered to respect the law and the Recognition Agreement signed by both parties and follow the procedures in the signed Recognition Agreement and the C.B.A.

ii) THAT the Respondent be directed and ordered to reinstate the union representatives to their original work place as machine attendants forthwith.

iii) THAT the Respondent be directed and ordered not to Harass, intimidate and victimized any representative/workers permanently and follow the laid down procedure in law if any dispute arise.

iv) THAT the Respondent to pay the costs of this suit.

The respondent acknowledges that the parties have a recognition agreement with the claimant but denies the veracity of the claim. It is her case that this claim was filed prematurely without disclosing a cause of action and puts the claimant in strict proof thereof.

The respondent’s further case is a denial of intimidation of its employees or at all.

4. The Respondent has never harassed or intimidated any of its employees as alleged in the memo of claim and no employee has been named as having been harassed and given any evidence of such intimidation and harassment as alleged

See appendix 2 a copy of the RTF

5. The Respondent further avers that the Claim is amorphous and not disclosing any cause of action. It’s an embarrassing claim as the Claimant does not know how to Respondent to such an amorphous nature of the Claim and will at an appropriate time apply to strike out the Claim for not disclosing any cause of action.

6. Parties have so far resolved the issue of agency fee and there was a consent that was filed in court and the same has been complied with fully as the list as submitted to the union through the ministry.

7. Both parties engaged in out of court settlement after the Claimant had filed this claim under the ministry of labour and for purposes of maintaining the social dialogue and good industrial relations the Respondent submitted all the names which were already in possession of the union and the matter was resolved at that level.

8. The matter has been pending in court for all that period because both social partners had agreed to have the matter settled through such mechanism and it’s surprising to be invited to defend a claim that is more than 4 years old and which according to both parties was settled in 2013.

9. The Claimant does not disclose which part of the CBA is not being implemented and this clearly demonstrates that the Claim as filed was meant to embarrass the Respondent as the CBA is being implemented to the letter.

See appendix 3 a copy of the Certificate of registration.

The matter came to court variously until the 17th October, 2018 when it was heard inter partes.

The issues for determination therefore are;

1. Whether the pleadings are frivolous and abuse of the process of court?

2. Whether the claimant is entitled to the relief sought?

3. Who bears the costs of this claim?

The 1st issue for determination is whether the pleadings are frivolous and abuse of the process of court. The claimant does not file any written submissions in support of her case.

The respondent in her written submissions dated 29th October, 2018 submits that the claim as presented does not disclose any cause of action and is frivolous. She relies on the authority ofBrite Prints (K) Ltd v Attorney General HCC No 1096 of 2000where the court observed as follows;

“According to BLACK’S LAW DICTIONARY (5th ed.), West Publishing Co., St Paul Minn., U.S.A., 1979) a matter is frivolous it is of little weight or importance: a pleading is ‘frivolous’ when it is clearly insufficient on its face, and does not controvert the material points of the opposite pleadings, and is presumably interposed for mere purposes of delay and to embarrass the opponent. A vexatious pleading is one without a reasonable or probable base and only intended to harass, disquiet or annoy the other party. A pleading is embarrassing if it is so drawn that it is not clear what case the opposite party has to meet at the trial (see4 British Land Asso v Foster (1888) 4 times Rep. 574). However, a pleading is not embarrassing only because it contains allegations that are inconsistent or slated in the alternative (see Re Morgan, Owen v. Morgan (1887) 35 C.D. 492

The respondent further relies on the authority of BETWEL OKAL VS TELCOM & OTHERS IN ca NO.191 OF 2014,The courts held thus; Pleadings are not just a formality; they are essential in order to frame issues for the determination by the court and to enable the parties know exactly what case they are expected to meet. This issue was aptly addressed in the time honoured English of Thorp v Holdsworth [1876] 3 Ch. D. 637 at 639 where the Court held that:

“The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules… was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”

It is the respondent’s case and submission that the claim of constructive dismissal is not substantiated as there is no evidence proffered to prove that the individuals alleged to have been terminated from employment were her members. This is as follows;

11. The Claimant union has mentioned names of some individuals whom it alleges are or were members and officials of the union. There is neither evidence of employment nor union official status. When the cause of action arose is not known and even their dates of employment are not disclosed. The Respondent is not able to make any substantive response to such claims. The union ought to have particularized the claims.

12. In the case of JOANE VAN GREUNEN VS JOHANNESBURG FRESH

PRODUCE (JS 175/07) [2010] ZALC 27at paragraph 23, it was held that for a claim of constructive dismissal to succeed, the Claimant must show that the Respondent seriously and continuously conducted itself in a manner constituting repudiation of the contract. That, the employment relationship must have been rendered intolerable. The same sentiments are captured at paragraph 24 and 25 of the said authority. We humbly submit that the Claimant has not discharged that obligation. He did not even tender a resignation.

She also submits that the issue of agency fees was finalized and is not subject to any further litigation. This is because it was resolved by way of consent and this was recorded. Any attempt by the union to re-open the matter is an abuse of the process of court.

Further, the respondent submits thus;

18. We humbly submit that the claim herein does not meet the threshold as provided for in the law and judicial precedents from this Honourable Court. There is no proof that the claimants are members of the union. No iota of evidence suggests on what basis the union has filed this claim on behalf of the Grievants. We urge the Court to dismiss the claim on that basis.

I agree with the respondent. This matter is so muddled up as to make any sense. It is not a serious litigious exercise and the claimant has not exhibited any seriousness in setting out her issues in dispute. It cannot stand the test of a genuine matter for litigation. The claimant should move on to put her house in order.

I am therefore inclined to dismiss the claim for lack of form and merit. It is frivolous and an outright abuse of the process of court.

The 2nd issue for determination is whether the claimant is entitled to the relief

sought. She is not. Having presented a claim so wanting in form and substance, she becomes disentitled to the relief sought.

I am therefore inclined to dismiss the claim with orders that each party bears their cost of the same.

Dated and signed this 20th day of December 2018.

D.K. Njagi Marete

JUDGE

Delivered and signed this 20th day of December, 2018.

Maureen Onyango

PRINCIPAL JUDGE

Appearances

1. Mr. Burugu instructed by Macharia Burugu & Company Advocats for the claimant union.

2. Mr. Masese instructed by Federation of Kenya Employers for the respondent.