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ELRCDismissedCause Number 1567 of 2011· [2012] KEELRC 5 (KLR)

Kenya Game Hunting And Safari Workers Union v Lewa Wildlife Conservancy Limited [2012] KEELRC 5 (KLR)

Industrial Court of Kenya
22 August 2012
JRJames Rika
2,423 words in judgment
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The bottom line

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A Kenyan court allowed an employer to exclude managers from union representation, but the union lost mainly for failing to bring evidence.

What this practically means

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Executive summary

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The claimant trade union, which represents the Wildlife Conservancy Industry, referred a dispute to the Industrial Court against Lewa Wildlife Conservancy Limited over levels of trade union representation. The parties held a recognition agreement and several CBAs; clause 2 of the current CBA defined unionisable employees by reference to the Industrial Relations Charter. The claimant objected that the respondent was re-designating unionisable employees as managers - including security officers, a Donor Relations Manager and a Financial Administration Manager - to deny them union representation and create a third, non-unionisable category. The claimant made no specific prayers, relying on oral submissions by its General Secretary. The respondent, through the Federation of Kenya Employers, argued that the categorisation followed a job evaluation, was a matter of company policy and managerial prerogative, and complied with the Charter and the CBA; it relied on Justice Kosgei's decision in Aviation and Allied Workers Union v Kenya Civil Aviation Authority. The Court agreed with that decision, holding that although Article 41 guarantees every employee the right to join a trade union, the exclusion of management staff is a reasonable limitation under Article 24, since management participation in unions would undermine collective bargaining. The Court found the respondent's organogram, job descriptions and grading structure portrayed real managers, and the claimant led no evidence that any employee was merely nick-named without change in grade or salary. The claim was dismissed with no order as to costs.

Key legal issues

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01

Reasonableness of restricting trade union representation for management employees

Holding

The limitation on management staff joining trade unions is a reasonable restriction in a democratic society under Articles 41 and 24 of the Constitution

Reasoning

The Court reasoned that the Industrial Relations Charter, a product of tripartite engagement, defines unionisable employees and excludes management. Allowing management staff into the union would conflict with collective bargaining, since management and union leaders cannot bargain on the same side. The constitutional right of association is therefore subject to reasonable limitation under Article 24, balancing labour rights and managerial prerogative.

p. 3
02

Whether the respondent nick-named unionisable employees as managers

Holding

The claim failed for want of evidence; the organogram, job descriptions and grading structure showed real managers, and the claimant led no contrary evidence

Reasoning

The claimant argued emotionally but produced no hard evidence of nicknaming. The respondent produced an organisational chart, job descriptions with responsibilities and objectives, and a grading structure, none of which the claimant contradicted. No employee testified to holding a managerial title with an inferior grade or pay. The submissions remained conjecture, so the allegation of sham titles failed.

p. 3
03

Absence of specific prayers

Holding

The claimant made no specific prayers and failed to direct the Court to any material justifying an award, resulting in dismissal

Reasoning

The claimant did not state precisely how the respondent violated the reasonable restriction on freedom of association. The General Secretary relied on oration at the hearing, but the Court held it could not grant an award by deduction without material. The respondent also protested that the claim contained no clear prayer. The combined evidential and pleading failure disposed of the claim.

p. 3

Legal principles established

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  • Restriction of trade union representation for management staff is a reasonable limitation on the right to associate under Article 41, as read with Article 24 of the Constitution
  • Employers have the managerial prerogative to categorise employees, subject to the hierarchical structure of the workplace and the Industrial Relations Charter
  • A party alleging that employees have been nick-named into management bears the burden of proving no substantive change in duties, grading or remuneration
  • Kenyan law does not recognise co-determination; trade union participation in management extends only as far as the recognition agreement and CBAs allow

Court orders

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  1. 1.The claim is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 24
  • Industrial Relations CharterAppendix 'C'

Cases cited (1)

  • Aviation and Allied Workers Union vs. Kenya Civil Aviation Authority
    Industrial Court Cause Number 35 of 2011
Jurisdiction invoked
Dispute referred to the Industrial Court under labour dispute resolution procedures; dispute over levels of trade union representation under a recognition agreement and CBA grounded in the Industrial Relations Charter

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Game Hunting And Safari Workers Union v Lewa Wildlife Conservancy Limited [2012] KEELRC 5 (KLR)", Case Analysis (2012). Cause Number 1567 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/5/eng@2012-08-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.