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ELRCDismissedNotice of Motion dated 21st March 2013 (Industrial Court, Nairobi)· [2013] KEELRC 773 (KLR)

Kenya Shoe and Leather Workers Union v Falcon Tanners Company Limited & another [2013] KEELRC 773 (KLR)

Industrial Court of Kenya (now Employment and Labour Relations Court)
18 September 2013
LNLinnet Ndolo
1,186 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan union lost its recognition bid because it could not prove, with solid documents, that most employees were its members.

What this practically means

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Executive summary

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This first-instance ruling of the Industrial Court at Nairobi, delivered by Linnet Ndolo, Judge, on 18th September 2013, determined a Notice of Motion dated 21st March 2013 by which the Claimant Union sought orders compelling the 2nd Respondent (the Conciliator) to prepare and file its report, directing the 1st Respondent to sign a Recognition Agreement with the Union, and to deduct and remit union dues. The dispute arose from a conciliation process commenced in January 2012 following allegations that the Union's check-off forms contained forged signatures. The Court had directed the Conciliator to investigate; her report found the forgeries to be true, and her final report concluded that the Union had not recruited a simple majority of the unionisable employees: ten listed persons were casuals, ten had denounced membership, and a second list of five signatures was forged. The Union objected to both reports, contending it had recruited 24 of 30 employees, that it was the recognised union in the sector, and that proper withdrawal procedures had not been followed by those denouncing membership. Its witness, however, admitted that eight of his recruits had left employment. The 1st Respondent filed fifteen affidavits, including denials of membership and disowned signatures. The Court held that a trade union seeking recognition must prove a simple majority of unionisable employees with clear documentation, found no evidence that the threshold was met, disregarded the Union's unsubstantiated allegations of coercion and Conciliator bias, confirmed the Conciliator's report, and dismissed the application with no order for costs.

Key legal issues

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01

Entitlement to recognition under Section 54 of the Labour Relations Act

Holding

The Claimant Union was not entitled to recognition as it had not proved a simple majority of unionisable employees

Reasoning

The Court accepted the Conciliator's findings that ten listed persons were casuals or not employees, ten had denounced membership, and a purported second list was a forgery. The Union's own representative admitted many recruits had left employment. Unsubstantiated allegations of coercion and Conciliator bias were disregarded. The statutory threshold under Section 54(1) and (2) was therefore not met, and the Conciliator's report was confirmed.

p. 3
02

Evidentiary burden of proving union membership

Holding

The Union bore the burden of documenting its majority, and its claim was controverted by affidavits of the employer and its employees

Reasoning

The Union claimed 24 of 30 employees as members, but the employer filed fifteen affidavits including ten employees denying membership or disowning signatures. The Conciliator investigated and found the forgeries true. Assertions without clear documentation cannot found recognition, and the burden of proof lay on the Union seeking the statutory entitlement.

p. 3

Legal principles established

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  • An employer must recognise a trade union only where the union represents a simple majority of unionisable employees
  • A claim to simple majority must be supported by clear documentation

Court orders

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  1. 1.Confirmation of the Conciliator's report
  2. 2.Dismissal of the Claimant's application
  3. 3.No order for costs

Authorities

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Legislation

  • Labour Relations Act, 2007Section 54(1)
  • Labour Relations Act, 2007Section 54(2)
Jurisdiction invoked
Trade dispute referred to the Industrial Court following statutory conciliation under the Labour Relations Act

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 Shoe and Leather Workers Union v Falcon Tanners Company Limited & another [2013] KEELRC 773 (KLR)", Case Analysis (2013). Notice of Motion dated 21st March 2013 (Industrial Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/773/eng@2013-09-18

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