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ELRCDismissedNot stated in judgment· [2013] KEELRC 876 (KLR)

Kenya Union of Commercial, Food & Allied Workers v Yatin Supermarket Limited [2013] KEELRC 876 (KLR)

Industrial Court of Kenya
30 September 2013
HWHellen Wasilwa
1,462 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court refused a union's recognition order because employee numbers had changed, telling the union to recruit afresh before seeking recognition.

What this practically means

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Executive summary

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The claimant union, Kenya Union of Commercial Food and Allied Workers Union, filed a memorandum of claim on 21/6/2011 against the respondent seeking recognition as the representative trade union of the respondent's unionisable employees, together with an application restraining the respondent from terminating or disciplining employees on account of union membership. The claimants asserted they had recruited a simple majority of the unionisable employees on various dates between 2005 and 2010, produced check-off forms, and, after failed attempts to secure meetings, referred the dispute to the Minister of Labour under Section 62 of the Labour Relations Act 2007. A conciliator was appointed on 19.1.2011, but the respondent failed to file proposals or attend conciliation meetings. The respondent never filed a memorandum of reply, only a replying affidavit sworn by its Operation and Administrative Manager, K. C. Hariharan. The court, invoking Section 15 of the Industrial Court Act 2011, referred the dispute back to the conciliator, whose report of 1.7.2013 indicated the claimants had recruited seven of the current workforce, recommending execution of a recognition agreement. The court framed two issues: whether the claimants had recruited the requisite simple majority under Section 54 of the Labour Relations Act, and how the conciliator's report should be treated. Noting the respondent's evasiveness and failure to produce statutorily mandated employment records under Section 74 of the Employment Act, but also the significant shift in workforce numbers (from 44 of 54 to 15 employees), the court found the claimants' case not established and directed that fresh recruitment be carried out before recognition could be sought. No costs order was recorded.

Key legal issues

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01

Whether the claimant union had recruited a simple majority of the respondent's unionisable employees to warrant recognition under Section 54 of the Labour Relations Act 2007.

Holding

The claim was not established; the workforce landscape had changed and fresh recruitment was required before recognition could be sought.

Reasoning

The court noted two failed conciliation attempts, the respondent's failure to file a memorandum of reply or produce employment records mandated by Section 74 of the Employment Act, and the conciliator's finding that only 15 employees remained, of whom 7 were union members. Given the shift from 44 of 54 members to 7 of 12 unionisable employees, the court found it imprudent to grant recognition orders on the prevailing circumstances.

p. 3
02

How the court should consider the conciliator's report.

Holding

The court considered the conciliator's report together with the evidence adduced, and accepted its findings on current employee numbers.

Reasoning

The conciliator's report, submitted on 1.7.2013, found the claimants had recruited the requisite number of workers (seven of the current 12) and recommended signing a recognition agreement under Sections 5(2) and 54(1) of the Labour Relations Act. The court weighed this report against the respondent's evasiveness and non-production of records, but found the reported shift in workforce numbers decisive against granting the orders sought.

p. 2

Legal principles established

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  • An employer must recognise a trade union for collective bargaining where that union represents the simple majority of unionisable employees (Section 54, Labour Relations Act 2007).
  • The court may stay proceedings and refer a dispute for conciliation, mediation or arbitration where it becomes apparent the dispute ought to have been so referred (Section 15, Industrial Court Act 2011).
  • An employer is required under Section 74 of the Employment Act to keep written employment records, which are key to ascertaining the truth in membership disputes.

Court orders

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  1. 1.The claimants' case is not established; recognition orders were not granted
  2. 2.Claimants to carry out fresh recruitment before any recognition can be allowed or sought for

Authorities

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Legislation

  • Labour Relations ActSection 4
  • Labour Relations ActSection 62
  • Labour Relations ActSection 54
  • Labour Relations ActSection 5(2)
  • Labour Relations ActSection 54(1)
  • Industrial Court ActSection 15
  • Employment ActSection 74(1)
  • Employment ActSection 74(2)
Jurisdiction invoked
Industrial Court Act 2011, Section 15; Labour Relations Act 2007, Sections 54 and 62

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 Commercial, Food & Allied Workers v Yatin Supermarket Limited [2013] KEELRC 876 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/876/eng@2013-09-30

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