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ELRCDismissedIndustrial Cause (number not stated in judgment)· [2013] KEELRC 863 (KLR)

Kenya Petroleum Oil Workers Union v Petro Oil Kenya Ltd [2013] KEELRC 863 (KLR)

Industrial Court of Kenya
1 November 2013
RSRadido Stephen
1,253 words in judgment
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The bottom line

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A Kenyan court dismissed a union's claims against its employer because the union sued too early and lacked evidence of victimisation.

What this practically means

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Executive summary

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The Kenya Petroleum Oil Workers Union sued Petro Oil Kenya Ltd in March 2011, alleging refusal to sign a recognition agreement and to deduct and remit union dues, and victimisation of employees engaged in union activities. Interim orders restraining terminations had been issued by Kosgei J, who ceased office before delivering an award; Radido J prepared the award on the record, pleadings and submissions with the parties' consent under Rule 21 of the Industrial Court (Procedure) Rules, 2010. On dues, the court held that although the check-off forms referenced the applicable Gazette Notice (No. 745 of 2 February 1998), so the Respondent was aware of the ministerial order, and although an employee signing form S need not give a further authorization, the Union's suit filed on 21 March 2011, only 14 days after its notice, was premature, as section 48 of the Labour Relations Act allows deductions within 30 days of notice. On recognition, the court accepted that the Union had recruited 42 of the Respondent's 80 unionisable employees — a figure not traversed — exceeding a simple majority under section 54. However, allegations of victimisation and intimidation were not supported by sufficient evidence. All prayers were accordingly declined, the Union being left at liberty to organise within legal parameters, with no order as to costs. Judgment was delivered in Mombasa on 1 November 2013.

Key legal issues

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01

Deduction of union dues under section 48 of the Labour Relations Act

Holding

The claim was premature as it was filed within 30 days of the Union's notice, before dues became deductible, and without giving the Respondent time to verify the forms S.

Reasoning

Section 48 of the Labour Relations Act requires that dues become deductible within 30 days of the union serving a notice in form S. The Union notified the Respondent on 7 March 2011 but moved the Court on 21 March 2011, before that period expired. The Respondent's request for the ministerial order was answered by the reference to Gazette Notice No. 745 of 2 February 1998 on the check-off forms.

p. 3
02

Recognition agreement under section 54 of the Labour Relations Act

Holding

The Union had recruited more than a simple majority (42 of 80 unionisable employees), a fact not traversed, so it had demonstrated majority representation, but the claim as framed was premature.

Reasoning

Recognition is not granted as of right; a union must show it represents a simple majority of unionisable employees. The Union's claim of 42 out of 80 unionisable employees was not denied in the Replying Affidavit, so the court accepted it. Nevertheless, because the dues claim was premature, all prayers were declined.

p. 3
03

Alleged victimisation and intimidation of employees for union activities

Holding

Not proved; the Union failed to adduce sufficient evidence of unfair terminations linked to union activities.

Reasoning

Although termination on account of union activities is outlawed under the Employment Act, the Union relied on annexed termination and redundancy letters without evidence demonstrating why the terminations were unfair. The court could not make a finding of victimisation on the material placed before it.

p. 3

Legal principles established

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  • There is no legal requirement for an employee who has signed form S (check-off) to give the employer a further authorization to deduct union dues.
  • A trade union must demonstrate that it has recruited a simple majority of an employer's unionisable employees before recognition, per section 54 of the Labour Relations Act.
  • An untraversed deposition stands admitted for purposes of determining the cause on pleadings.

Court orders

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  1. 1.Decline of all prayers sought by the Union
  2. 2.Liberty for the Union to commence organising within legal parameters
  3. 3.No order as to costs

Authorities

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Legislation

  • Labour Relations Actsections 4, 5(a) and (c), 48(2) and (3), 54
  • Employment Actsections 41, 45
  • Industrial Court (Procedure) Rules, 2010Rule 21
  • Trade Disputes Act (repealed)section 45
  • Constitution of KenyaArticle 41(4)
Jurisdiction invoked
Industrial Court jurisdiction under the Industrial Court (Procedure) Rules, 2010 (Rule 21) — the judgment does not cite a specific constitutional provision for jurisdiction

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 Petroleum Oil Workers Union v Petro Oil Kenya Ltd [2013] KEELRC 863 (KLR)", Case Analysis (2013). Industrial Cause (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/863/eng@2013-11-01

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