[2023] KEELRC 2673 (KLR)

Multimedia University of Kenya Limited v Universities Academic Staff Union (UASU) (Employment and Labour Relations Cause E817 of 2022) [2023] KEELRC 2673 (KLR) (27 October 2023) (Ruling)

Neutral citation: [2023] KEELRC 2673 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Employment and Labour Relations Cause E817 of 2022

AN Mwaure, J

October 27, 2023

Between

Multimedia University of Kenya Limited

Claimant

and

Universities Academic Staff Union (UASU)

Respondent

Ruling

1. The Claimant opposed the Conciliator’s report dated 24th March 2023 vide an affidavit sworn by Wilson Kagwe dated 15th June 2023.

Claimant/ Applicant’s Case 2. The Claimant’s application was supported by an affidavit dated 16th June 2023.

3. The Claimant avers that it does not accept the Conciliator’s recommendations which amount to overturning the judgment of this court in Petition No. E127 of 2021 University Academic Staff Union V Multimedia University which the court declined to stop the implementation of the universities new academic policy and also declined to issue declaration of the new academic policy which was an infringement of the Claimant’s constitutional rights.

4. The Claimant avers that this court already declined to stop the implementation of the new academic policy. The court cannot suspend the academic policy on the basis of the conciliator’s report as that would erode the authority and dignity of the court.

5. The Claimant avers that implementation of the new academic policy will affect the learning process at the university as the class sizes and budget for academic staff payment had already been approved in the payroll.

6. The Claimant avers that it engaged the Respondent in consultative meetings in 5th August 2022 and 8th September 2022 as ordered by this court in its judgment in Petition No. E127 of 2021 University Academic Staff Union vs Multimedia University but the Respondent has demonstrated bad faith by insisting it can only engage in consultations if the implementation of the academic policy is stopped.

Respondent’s Case 7. The Respondent filed an affidavit dated 7th July 2023 in support of the recommendations of the Conciliator.

8. The Respondent avers the Conciliator’s findings on the fact are based on merit after hearing of representatives of the parties and should not be disturbed and the recommendations gives a viable way forward to resolving the dispute.

9. The Respondent avers that the Claimant misled this court by asserting the conciliator’s recommendations amount to overturning the judgment of this court in Petition No. E127 of 2021 University Academic Staff Union (UASU) V Multimedia University.

10. The Respondent avers that the court at paragraph 9 of the aforesaid judgment observed: -That the Respondent [Multimedia University of Kenya] is yet to implement the content of the circular dated 11th March 2021 and there is as such no impending danger and/or harm that may be occasioned to the Petitioner at the moment.

11. The Respondent avers that the court was made to believe by the Claimant that the academic policy stipulating the new workload and part time rates yet to be implemented and based on this premise the court directed the parties to embark on consultations within 3 months to resolve the matter.

12. The Respondent avers that the court in its judgment did not endorse the new academic policy; anticipate the parties would ratify the policy during consultations; block the parties by themselves or the conciliator recommending a solution to this dispute and the court did not take away the right of workers to strike over the matter.

13. The Respondent avers that it was first to reach out to the Claimant for consultations over workload and part time rates as evidence in its letter dated 28th June 2022 which forwarded the said judgment and requested compliance.

14. The Respondent avers that the Claimant’s pattern of behaviour led to the breakdown of the consultations.

15. The Respondent avers the issue of class size and merger of courses the minutes dated 18th January 2022 submitted by the Claimant states, “Management informed them that it was a council directive…...”it was a take it or leave it position of the employer signalling exhaustion of dialogue on the matter.”

Analysis and Determination 16. The conciliator in his report dated 24th March 2023 found:“There seems to have been no consultations between the parties to this dispute before implementation of managements circular under reference MMU/V/Council Resolution/Vol.1 (131) dated 11th March 2021 which the employer hiding behind the Treasury Circular requiring the prudent use of public funds.The employer contravened sections 10(5) and 13 of the Employment Act, 2007, when normal teaching workload was increased and the rates of part-time payment were reduced without consulting the union first.”

17. The conciliator then recommended:“After careful consideration of both parties submissions, coupled with the above findings, I recommend that the employer suspends implementation of circular MMU/V/Council Resolution/Vol.1 (131) dated 11th March 2021 to pave way for negotiations between the two parties, based on the parties Recognition Agreement framework.”

18. The Claimant in its affidavit in opposition to the aforesaid conciliator’s recommendation averred that the recommendation amounts to overturning Petition No. E127 of 2021 University Academic Staff Union V Multimedia University which is not the case, Hon. Justice Nzioki wa Makau in his judgment observed and ordered:“The Petitioner has asserted the absence of public participation in a key decision affecting the salaries of employees of the Respondent University. Chapter 12 of the Constitution of Kenya, 2010 on public finance behoves public institutions such as the Respondent to ensure that the monies used to pay its employees are used prudently and accounted for to the public. The law places this imprimatur on public bodies alive to the fact that wastage of public resources must be deprecated. This however does not grant public bodies a licence to disregard other aspects of the Constitution. From my reading of the response of the Respondent, there has been scanty if any consultation. Indeed, the evidence the Respondent adduces shows there was public participation in the previous round of salary adjustments but in the 2020/2021 reviews there seems to have been no consultation with the Respondent hiding behind the Treasury Circular requiring the prudent use of public funds. In the final analysis, given that there was no consultation, I would direct the Respondent and the Petitioner to immediately embark on a round of consultations to see how the Treasury circular can be actualised noting that indeed the public purse is fraught with the heavy demands and requires a conciliatory approach. Granted the court cannot determine the sums to be paid to lecturers for work done the court will allow the parties to resolve the matter within the next 3 months. There shall be no orders.”

19. The court in Petition No. E127 of 2021 University Academic Staff Union V Multimedia University did not decline to stop the implementation of the new academic policy or make any order in respect to the academic policy but ordered the parties to engage in consultation and resolve the matter within 3 months. The court observed that there was no public participation as observed above. The consultation the court ordered the parties to embark on is similar to sitting to negotiate in the presence of a conciliator as it happened hereto.

20. The conciliator did not overturn the decision of the court but simply recommended the parties to suspend the implementation of the circular MMV/VC/Council Resolution/Vol 1(131) dated 11th March 2021 to pave way for negotiations between the two parties based on the parties recognition agreement framework.

21. The court finds there is no conflict from what the court had ruled in the above suit E127/2021 and the conciliators recommendations dated 24th March 2023 and so the said recommendations are adopted by this court for further action by the respective parties as has been recomended.Orders accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 27TH DAY OF OCTOBER, 2023. ANNA NGIBUINI MWAUREJUDGEORDERIn view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. 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 1B of the 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.A signed copy will be availed to each party upon payment of Court fees.ANNA NGIBUINI MWAUREJUDGE