Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers v Merica Hotel Limited [2013] KEELRC 644 (KLR)
The bottom line
#The Industrial Court confirmed Kenyan hotels stay bound by a collective bargaining agreement even after leaving an employers' association, but rejected the union's reinstatement and dues claims.
What this practically means
#Executive summary
#Key legal issues
#Binding effect of the CBA on the respondent
The respondent was bound by the CBA; the recognition agreement was never revoked or terminated as envisaged in section 54(5) of the Labour Relations Act, and even resignation from the association would not release it under section 59(2)
RW confirmed the respondent was a member of the employers' association at all material times and that the CBA bound it for the agreement's period. The association's constitution was not on record to show any procedure for ceasing membership had been complied with. The recognition agreement was never revoked under section 54(5), and section 59(2) provides collective agreements continue to bind parties who resign from the association. The claimant's prayer to compel conclusion of a recognition agreement therefore failed, but the order for compliance with the existing one succeeded.
Whether the grievants' contracts lapsed or were terminated, and the effect of conversion to regular terms
The contracts lapsed by effluxion of time; the respondent complied with the notice the grievants were entitled to following conversion to regular terms, and discharged the contractual promise of renewal subject to availability of work and performance
The Regulation of Wages (Hotel and Catering Trades) Order, surviving repeal of the Employment Act Cap 226 via section 24 of the Interpretation and General Provisions Act, converted the grievants to regular terms after six months. On conversion they were entitled to 28 days' notice or pay in lieu under clause 19 of the CBA and section 35(1)(c) of the Employment Act, 2007. The court found the last renewal contract contained the essence of such notice, that the respondent did not overtly terminate services, and that the invitation to apply for vacancies discharged the contractual renewal promise. Unrebutted evidence showed applicants were interviewed and appointed.
Reinstatement of the grievants
Reinstatement refused
The respondent's unrebuted evidence was that interviews were conducted to fill vacancies following the lapsing of the grievants' contracts. In such circumstances reinstatement or re-engagement would be difficult to implement, so the relief did not issue.
Unquantified terminal dues and allowances
Claims failed for lack of evidence and submissions
The claimant bore the burden of establishing underpayment, special damages, leave travel allowance, off-days, leave days, service charge underpayment, house allowance, salary increment and notice per years served. No evidence or specific submissions were adduced, and the proposal to have the County Labour Officer compute dues was misconceived.
Preliminary objection on pleadings
Deemed abandoned; defects occasioned no significant prejudice
The respondent did not urge the preliminary point in final submissions, so the court deemed it abandoned. The absence of a proper memorandum of response was noted, but parties were required to comply with pleading rules and, in the circumstances, the defects caused no significant prejudice since the issues submitted upon sufficed.
Legal principles established
#- An employer who was a member of an employers' association party to a CBA remains bound by it; a recognition agreement may only be terminated or revoked through the mechanism in section 54(5) of the Labour Relations Act, and under section 59(2) a collective agreement continues to bind members who resign from the trade union or employers' association
- Subsidiary legislation made under a repealed statute survives repeal by virtue of section 24 of the Interpretation and General Provisions Act, Cap 2, until revoked or replaced
- Employees on temporary or seasonal terms for over six months' continuous service convert to regular terms of service, attracting fair termination procedures under section 41 of the Employment Act, 2007
- Employers are not obliged to give reasons for non-renewal of fixed term contracts unless such obligation is created in the expiring contract; where the contract promises renewal subject to availability of work and performance, the employer discharges that obligation by inviting applications, interviewing and filling vacancies
Court orders
#- 1.A declaration that the parties were at all material times bound by the recognition and collective agreements as signed on 22.06.2012 between the claimant and the Union of Kenya Hotelkeepers and Caterers Association
- 2.A declaration that the respondent discharged its obligations under the individual fixed term contracts and the collective agreement
- 3.Each party to bear own costs of the case
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Industrial Court (Employment and Labour Relations Act); Labour Relations Act, 2007; Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers v Merica Hotel Limited [2013] KEELRC 644 (KLR)", Case Analysis (2013). Industrial Cause (Nakuru) - memorandum of claim filed 24.12.2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/644/eng@2013-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.