[2017] KEELRC 190 (KLR)
The court found that the Respondent, Dock Workers Union, lacked a recognition agreement with the Claimant, Transeast [K] Ltd, and therefore had no legal standing to engage in industrial relations or call for industrial action against the Claimant. The redundancy process in question was conducted in accordance with...
Source-derived case information.
- Citation
- [2017] KEELRC 190 (KLR)
- Parties
- Claimant: Transeast [K] Ltd; Respondent: Dock Workers Union
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 939 of 2015
- Procedural Posture
- Employment Cause / Ruling on Interlocutory Applications
- Outcome
- Claimant's application granted; Respondent's application declined.
- Judges
- J Rika
- Legal Topics
- Trade Union Recognition, Collective Bargaining Agreements, Redundancy Procedure, Industrial Action, Injunctive Relief
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Transeast [K] Ltd
Claimant
Dock Workers Union
Respondent
Procedural Posture
Employment Cause / Ruling on Interlocutory Applications
Legal Issues
- 1 Whether the Respondent, a trade union without a recognition agreement with the Claimant, can lawfully call for or instigate industrial action against the Claimant.
- 2 Whether the Claimant is entitled to injunctive relief restraining the Respondent from calling or instigating an unprotected strike.
- 3 Whether the Respondent is entitled to an order restraining the Claimant from issuing redundancy notices.
Ratio Decidendi
The court found that the Respondent, Dock Workers Union, lacked a recognition agreement with the Claimant, Transeast [K] Ltd, and therefore had no legal standing to engage in industrial relations or call for industrial action against the Claimant. The redundancy process in question was conducted in accordance with the collective bargaining agreement between the Claimant and the recognized union, TAWU. The Respondent's concession and the legal framework under Section 54 of the Labour Relations Act 2007 supported the Claimant's application for injunctive relief. The Respondent's own application was declined due to lack of demonstrated capacity and absence of submissions.
Court Disposition
Claimant's application granted; Respondent's application declined.
Orders
- The Claimant's application dated 17th December 2015 is granted.
- The Respondent's application filed on 22nd December 2015 is declined.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT AT MOMBASA
CAUSE NUMBER 939 OF 2015
BETWEEN
TRANSEAST [K] LTD....................................................CLAIMANT
VERSUS
DOCK WORKERS UNION.......................................RESPONDENT
Rika J
Court Assistant: Benjamin Kombe
Federation of Kenya Employers for the Claimant
Leonard Rufus Ochieng’ Executive Officer, for the Respondent
RULING
1. This Claimant filed an Application on 17th December 2015 seeking to have the Respondent restrained from taking part in, calling, instigating or inciting others to take part in unprotected strike, or any form of industrial action, pending hearing and determination of the Claim.
2. Interim order restraining the Respondent pending hearing and determination of the Application inter partes issued on 18th December 2015.
3. The Respondent filed a Replying Affidavit sworn by its General Secretary, Simon Kiprono Sang, on 3rd February 2016.
4. The Respondent filed its own Application on 22nd December 2015 asking the Court to restrain the Claimant from issuing any other termination notices under the guise of redundancy.
5. Parties agreed to have the two Applications disposed of through written Submissions. They confirmed filing of Submissions at the last mention in Court on 2nd October 2017. The Respondent seems to have submitted nothing with regard to its own Application.
The Court Finds:-
6. At paragraph 6 of Respondent’s Submissions filed on 29th September 2017, the Respondent concedes that a Trade Union that has no Recognition Agreement with the Employer, cannot engage the Employer with matters of Industrial Relations. Section 54 of the Labour Relations Act 2007 confers on a recognized Trade Union, the sole collective bargaining agency, in relation to the recognizing Employer. The Respondent submits that the Application by the Claimant should be allowed, with no order on the costs.
7. The background to the Claimant’s Application, is that the Claimant has a Recognition Agreement with Transport and Allied Workers Union of Kenya (TAWU). In October 2015, the Claimant declared 25 employment positions redundant. The affected Employees were Members of TAWU. The process was carried out in accordance with the CBA concluded between the Claimant and TAWU.
8. In December 2015, the Respondent issued upon the Claimant a strike notice, alleging the Claimant had failed to notify the Respondent of the intended redundancy. The Claimant brought this Claim to restrain the Respondent from proceeding with strike action, as the Claimant does not have any relationship with the Respondent.
9. The Court is satisfied based on these facts, the Law and the concession made by the Respondent, that the Application by the Claimant dated 17th December 2015 is merited.
10. With regard to Respondent’s Application, the Court’s view is that the Respondent Union has not demonstrated its capacity to represent Employees of the Claimant. The Redundancy Notices in question refer to CBA concluded between the Claimant and TAWU. TAWU is not a party to this Claim. The Respondent in any case has not made any submission with regard to its Application. The Application is declined.
IT IS ORDERED:-
a)The Application dated 17th December 2015, filed by the Claimant on the same date, is granted.
b)Application filed by the Respondent on 22nd December 2015 is declined.
c)Costs in either case to the Claimant.
Dated and delivered at Mombasa this 15th day of December 2017.
James Rika
Judge