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ELRCPartially AllowedMemorandum of Claim filed 3 July 2012· [2013] KEELRC 726 (KLR)

Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers v Board of Governors,Waa Girls High School [2013] KEELRC 726 (KLR)

Industrial Court of Kenya
30 August 2013
1,577 words in judgment
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The bottom line

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Kenya's Industrial Court ordered Waa Girls High School to recognise KUDHEIHA within 45 days because the union proved majority membership among its employees.

What this practically means

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Executive summary

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KUDHEIHA filed a Memorandum of Claim against the Board of Governors, Waa Girls High School on 3 July 2012, complaining of the Board's refusal to deduct and remit union dues, to recognise the union, and to negotiate a collective bargaining agreement. The union claimed it had recruited all 27 of the Respondent's unionisable employees between August 2010 and May 2011 and had sent check-off forms; a Conciliator appointed after a trade dispute was reported to the Minister for Labour found 100% membership and recommended recognition, which the Respondent declined. The Respondent contended it had been deducting and remitting dues, that a rival association, ABOGE, had recruited 8 employees, that some members had resigned, and that the Claim was defective for want of a verifying affidavit under rule 5(1) of the Industrial Court (Procedure) Rules, 2010. The court framed three issues: recognition, the legal effect of the missing verifying affidavit, and appropriate relief. Holding that the material time for assessing majority membership was when the check-off forms were sent, the court found the union represented more than a simple majority. ABOGE did not appear on the Ministry of Labour's list of registered unions and was said to be a welfare association. Following the Busia Teachers case, the court held the missing affidavit non-fatal, jurisdiction not having been challenged, and determined the Cause on the merits. The court ordered the Respondent to sign a recognition agreement within 45 days and to continue deducting and remitting dues, with no order as to costs given the anticipated social partnership between the parties.

Key legal issues

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01

Whether KUDHEIHA merits recognition by the Respondent

Holding

KUDHEIHA had recruited more than a simple majority of the Respondent's 27 unionisable employees at the material time and no rival union in the sector was established; the Respondent is ordered to sign a recognition agreement within 45 days

Reasoning

The court applied section 54 of the Labour Relations Act, requiring demonstration of a simple majority. The Conciliator's report and the Respondent's own list confirmed 27 unionisable employees, and the check-off forms contained 27 names and signatures. The material time for assessing majority was when check-off forms were sent, not the trial date. The alleged rival union ABOGE did not appear on the Ministry of Labour's list of registered unions and was said to be a welfare association, so the rival-union contention failed.

p. 3
02

Legal effect of failure to file a verifying affidavit

Holding

The omission was not fatal; the Cause would be determined on its substantive merits

Reasoning

Rule 5(1) of the Industrial Court (Procedure) Rules, 2010 requires a verifying affidavit, but the Court's procedures are kept simpler than under the Civil Procedure Rules because many parties lack legal training. The objection was raised late in submissions and it was not argued that the failure ousted jurisdiction. The court endorsed the High Court holding in Busia Teachers Co-Operative Credit and Savings Society Ltd v Nation Media Group Ltd that failure to file a verifying affidavit does not invalidate a plaint where a satisfactory reason is given.

p. 3
03

Deduction and remission of union dues

Holding

The head of claim was not really contested; the Respondent must continue deducting and remitting dues timeously in compliance with the Labour Relations Act

Reasoning

The Respondent exhibited cheques for January, February and March 2013, showing it had been deducting and remitting dues. Because the monies are deducted from employees who consented to union membership and deduction of dues, the employer must comply with the Labour Relations Act and remit the dues timeously. This head was effectively unopposed at trial.

p. 3

Legal principles established

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  • A union merits recognition where it demonstrates that it represents a simple majority of the employer's unionisable employees, assessed at the time the check-off forms were sent
  • Failure to file a verifying affidavit with a Memorandum of Claim does not invalidate the claim where a satisfactory reason is given and jurisdiction is not challenged
  • The right of workers to form, join and participate in trade union activities under Article 41(2)(c) is intertwined with the right to fair labour practices

Court orders

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  1. 1.The Respondent to recognise KUDHEIHA by entering into a recognition agreement within the next 45 days
  2. 2.The Respondent to continue with deduction and remission of union dues to KUDHEIHA as by law ordained
  3. 3.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41, including Article 41(2)(c)
  • Labour Relations Actsections 48, 54, 54(8)
  • Employment Actstatutory minimums (generally)
  • Labour Institutions Actstatutory minimums (generally)
  • Industrial Court (Procedure) Rules, 2010rule 5(1)
  • Civil Procedure Rulesverifying affidavit provisions (generally)

Cases cited (1)

  • Busia Teachers Co-Operative Credit and Savings Society Ltd v Nation Media Group Ltd
    (2004) 1 KLR 603
Jurisdiction invoked
Industrial Court (Procedure) Rules, 2010; dispute referred following conciliation under the Labour Relations Act (trade dispute reported to Minister for Labour on 14 April 2011)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers v Board of Governors,Waa Girls High School [2013] KEELRC 726 (KLR)", Case Analysis (2013). Memorandum of Claim filed 3 July 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/726/eng@2013-08-30

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