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ELRCDismissedNotice of Motion dated 8th August 2013 (Industrial Court)· [2013] KEELRC 786 (KLR)

Walter Mocha Ongeri & another v Airside Limited (Swissport Kenya) [2013] KEELRC 786 (KLR)

Industrial Court of Kenya
17 September 2013
MMM. Mbaru
2,797 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 8th August 2013 by two claimants, Walter Mocha Ongeri and Cyprian Salano, against their respondent employer, Airside Limited (Swissport Kenya), with Kenya Aviation Workers Union (KAWU) as interested party. The claimants, alleged promoters and officials of the proposed union KAWU, sought orders staying or setting aside their dismissal and termination following a disciplinary hearing arising from a 27th June 2013 visit by KAWU officials to the respondent's offices, an injunction against replacement hiring, and reinstatement. The respondent opposed, stating it had a recognition agreement with another union (AAWSUK), that the KAWU officials disrupted its operations, and that the claimants were validly sanctioned for gross misconduct after due process. The court held that promoters of a proposed union must undertake lawful activities under section 12 of the Labour Relations Act and may access employer premises only reasonably and subject to conditions under section 56(2); the claimants' unannounced and disruptive conduct was not protected. It found the disciplinary process procedural and fair under Article 41 of the Constitution and section 41 of the Employment Act, and held that the court should exercise caution in interfering with employer disciplinary processes, intervening only where a process is begun with ulterior motive or is unfair. The court also noted the 2nd claimant's employment appeared to be with a third entity not party to the suit. The application was dismissed, the 2nd claimant being at liberty to enjoin his employer, and the parties directed to set the main claim for hearing at the earliest opportunity. No costs order was stated.

Key legal issues

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01

Lawfulness of the claimants' union promotion activities

Holding

The conduct of the claimants and KAWU promoters on 27th June 2013 was disruptive and contrary to the reasonable access protocol required under section 56 of the Labour Relations Act, so their activities were not lawful and protected.

Reasoning

Promoters of a proposed union must comply with section 12 of the Labour Relations Act and undertake lawful activities. Access to employer premises must be sought reasonably, with the employer entitled to impose conditions on time and place under section 56(2). The claimants appeared unannounced at reception, and one promoter entered the HR officer's office despite being told to wait, which was disruptive.

02

Fairness of the disciplinary process

Holding

The disciplinary process undertaken by the respondent was procedural and fair in the circumstances, being investigative in nature and anchored in Article 41 of the Constitution and section 41 of the Employment Act.

Reasoning

Disciplinary procedures have a constitutional basis in the right to fair labour practices. The process is investigative to verify allegations, allowing punishment if proved and exoneration if not. The events of 27th June 2013 could only be ascertained through the internal process, and the claimants, as shop stewards, were aware of and subject to the existing CBA.

p. 4
03

Court's restraint in interlocutory intervention in disciplinary matters

Holding

The court will only stop a disciplinary process commenced with ulterior motive or illegality, and interim preservative orders must be exercised with caution to protect the employer's right to discipline fairly.

Reasoning

Section 12(3)(i) of the Industrial Court Act empowers interim preservation orders, but in exercising that jurisdiction the court must not usurp the employer's right to discipline. Stopping the respondent from continuing or hiring replacements would impose a sanction on the employer and halt its operations, which does not serve industrial peace.

p. 4

Legal principles established

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  • Employees are protected when participating in trade union activities only where those activities are lawful
  • An employer may impose reasonable conditions as to time and place of union access to premises under section 56(2) of the Labour Relations Act
  • Rights must be exercised reasonably without offending the rights of others
  • The court will not intervene in an employer's disciplinary process unless it is commenced or continued unfairly

Court orders

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  1. 1.The application dated 8th August 2013 is dismissed
  2. 2.The 2nd claimant is at liberty to enjoin his employer in the proceedings
  3. 3.Parties to set the main claim for hearing at their earliest

Authorities

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Legislation

  • Industrial Court Actsection 12, including 12(3)(i)
  • Employment Act, 2007section 46(d); section 41
  • Labour Relations Actsections 4, 8, 12(4) and (5), 56 and 56(2)
  • Constitution of Kenya, 2010Article 41
  • ILO Conventions 87, 111 and 135Article 1
Jurisdiction invoked
Section 12 of the Industrial Court Act; section 46(d) of the Employment Act; sections 4 and 8 of the Labour Relations Act; Article 41 of the Constitution

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, "Walter Mocha Ongeri & another v Airside Limited (Swissport Kenya) [2013] KEELRC 786 (KLR)", Case Analysis (2013). Notice of Motion dated 8th August 2013 (Industrial Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/786/eng@2013-09-17

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