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ELRCPartially AllowedCause Number 847 of 2010· [2014] KEELRC 603 (KLR)

Transport and Allied Workers Union v Universal Cabs Limited [2014] KEELRC 603 (KLR)

Industrial Court at Nairobi
3 March 2014
JRJames Rika
1,867 words in judgment
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The bottom line

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Kenya's Industrial Court told Universal Cabs to let its workers freely choose union membership, but refused to force immediate union recognition until a fresh recruitment exercise settles numbers.

What this practically means

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Executive summary

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The Claimant Union, registered to represent unionisable workers in transport and allied industries, initiated proceedings under Section 74(a) of the Labour Relations Act 2007 against Universal Cabs Limited, a taxi operator. It recruited 50 to 55 of the Respondent's unionisable employees in 2010 and forwarded check-off lists and a model recognition agreement, which the Respondent declined to act on, alleging the membership was procured through coercion and fraud and had been revoked by about 50 employees. The Union sought an order for recognition under Section 54, implementation of check-off under Sections 48 and 50, an injunction against harassment and intimidation, payment of terminal benefits to 12 employees whose contracts were terminated, and a collective bargaining agreement. The Court held that the termination claim was improperly joined with the recognition claim and deferred it, directing the Union to file a separate claim if minded to. On recognition, the Court found the number of unionisable employees and valid members unclear, found credible allegations of intimidation and union-busting by the Respondent, and declined to grant or reject recognition outright. It instead ordered the Respondent to supply a full list of unionisable employees within 7 days, gave the Union 30 days to recruit afresh, ordered non-interference with employees' freedom of association, granted an injunction against harassment, intimidation, victimisation and threats, warned of severe sanctions against interference, and directed the parties to return to Court after 37 days for further orders. The award was dated and delivered at Nairobi on 3rd March 2014 by Rika J.

Key legal issues

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01

Joinder of recognition and termination claims

Holding

The claim for terminal dues and compensation of the 12 terminated Employees was deferred and directed to be pursued separately

Reasoning

The Court held that presenting an omnibus claim muddles the evidence and stretches the law; it is difficult to assess evidence on multiple terminations in the same proceedings where recognition evidence is recorded and evaluated. The Employer would also face difficulty justifying terminations while fully answering the recognition claim. Each termination case has circumstances requiring enquiry within the context of termination law.

p. 3
02

Recognition and check-off

Holding

Recognition was neither granted nor rejected; the Court directed a fresh process of establishing membership through a fresh recruitment exercise

Reasoning

The Court found the total number of unionisable employees unclear and the validity of membership withdrawals doubtful, with credible allegations of intimidation and at least 12 employees losing employment in unclear circumstances around the time check-off lists were submitted. This suggested measures to bust the union. The Court prioritised the employees' free will in associating or dissociating with the union.

p. 3
03

Freedom of association and protection against victimisation

Holding

The Respondent was restrained from harassing, intimidating, victimising or threatening employees on account of union association

Reasoning

The Court found credible evidence that employees were grilled, told to leave the union or sign new contracts, and that the witness was sacked for refusing to quit the union. Events of June-August 2010 suggested measures to bust the union. The Court granted an injunction and warned of severe sanctions against interference with employees' freedom of association.

p. 4

Legal principles established

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  • An employer is required to recognise a trade union which has recruited a simple majority of the employer's unionisable employees
  • A claim for recognition should not be joined with a claim for unfair termination; the two must be pursued separately

Court orders

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  1. 1.The Respondent shall supply the Claimant Union with a full list of its Unionisable Employees within 7 days of the Award
  2. 2.The Claimant Union shall have 30 days from the date the list of Unionisable Employees is supplied to recruit afresh
  3. 3.The Respondent shall ensure no Employee is hampered in choosing to join or not join the Claimant Union, and ensure Union Officials are facilitated in accessing the workplace
  4. 4.An injunction restraining the Respondent, its servants and/or agents from harassing, intimidating, victimizing and/or threatening the Unionisable Employees on account of their association with the Claimant or any other trade union activity
  5. 5.Severe sanctions to be imposed on any Party found to have interfered with the Employees' right and freedom of association
  6. 6.The Parties shall move the Court at the close of 37 days for further orders

Authorities

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Legislation

  • Labour Relations ActSection 74(a)
  • Labour Relations ActSection 54
  • Labour Relations ActSection 48
  • Labour Relations ActSection 50
Jurisdiction invoked
Section 74(a) of the Labour Relations Act 2007

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, "Transport and Allied Workers Union v Universal Cabs Limited [2014] KEELRC 603 (KLR)", Case Analysis (2014). Cause Number 847 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/603/eng@2014-03-03

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