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ELRCStruck OutCause No 31 of 2013· [2014] KEELRC 1302 (KLR)

Communication Workers’ Union v Safaricom Limited [2014] KEELRC 1302 (KLR)

Industrial Court of Kenya
25 September 2014
MMM. Mbaru
2,052 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a registered union cannot sue for dismissed workers unless the employer formally recognises it, though the workers can still sue personally.

What this practically means

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Executive summary

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The Communication Workers' Union filed a claim on 20th December 2012 on behalf of 17 grievants alleging unfair, malicious and unlawful termination of their employment contracts, seeking a declaration of unfair termination, reinstatement or alternatively compensation. The Respondent raised a preliminary objection on the ground that there was no recognition agreement between it and the union as required under section 54(3) of the Labour Relations Act, and that the union therefore lacked locus standi. Parties agreed to address the objection first by way of written submissions. The Respondent relied on the sufficiency-of-interest test in the Law Society of Kenya case, arguing that only a recognised union may represent employees. The Claimant relied on Article 41(2)(c) of the Constitution and the Kenya National Private Security Workers Union decision, contending that representation is a constitutional right not defeated by the absence of a recognition agreement, and that the grievants had applied for membership with check-off forms and registration fees. The court held that while the grievants' constitutional right to unionise could not be curtailed, the right must be exercised within lawful means. Sections 54 and 59 of the Labour Relations Act are mandatory: without recognition by the employer and a CBA, a registered union cannot represent employees before the court. The court distinguished the Lavington Security decision on this basis. The preliminary objection was allowed and the suit struck out, but without prejudice to the grievants, whose right to sue in their own names or through a recognised union was preserved, with time deemed to have stopped running on 10th January 2013. Each party was to bear its own costs.

Key legal issues

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01

Locus standi of an unrecognised trade union to sue on behalf of its members

Holding

The Claimant union lacked standing because there was no recognition agreement under section 54(3) of the Labour Relations Act and no CBA, even though the union was registered and the grievants had applied for membership

Reasoning

The court traced the constitutional right to unionise under Article 41 to the statutory framework of the Labour Relations Act. Recognition under section 54 is stated in mandatory terms: an employer shall recognise a union representing the simple majority of unionisable employees. Recognition confers a special legal status enabling a union to represent employees in collective bargaining and disputes. Without recognition or a CBA, the union has no legal relationship with the employer and cannot maintain a claim for its members.

p. 3
02

Whether constitutional rights to association and representation override the statutory recognition requirement

Holding

They do not; the rights must be enjoyed within lawful means and the mandatory recognition provisions apply

Reasoning

The court acknowledged that the grievants' Article 41(2)(c) right to join and participate in a union cannot be curtailed, and rejected the Respondent's attempt to deny unionisation itself. However, the court distinguished between the right to unionise and the legal capacity to represent members in litigation and collective bargaining. Since the Labour Relations Act's recognition provisions are framed in mandatory language and Parliament made no provision permitting any union to offer representation regardless of recognition, the statutory route governs.

p. 4
03

Effect of striking out on the grievants' underlying claims and limitation

Holding

The strike-out preserves the grievants' right to file their own claims, and time stopped running on 10th January 2013 when they swore affidavits in support of the claim

Reasoning

Although the union's suit failed on standing, the court was careful not to prejudice the 17 grievants personally. It expressly preserved their right to sue in their own names, through legal representatives, or through a union recognised by the employer. To protect them from limitation consequences, the court held that their sworn affidavits of 10th January 2013 constituted an assertion of rights that stopped time from running.

p. 4

Legal principles established

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  • Without recognition by an employer under section 54 of the Labour Relations Act, a registered trade union lacks standing to sue on behalf of employees before the Industrial Court
  • The constitutional right to unionise and receive representation must be exercised within lawful means, in accordance with the statutory recognition regime
  • Striking out a union's suit does not extinguish the grievants' personal rights to file their own claims individually or through a recognised union
  • Time stopped running for limitation purposes when the grievants swore affidavits asserting their rights

Court orders

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  1. 1.The objections raised by the respondent are allowed
  2. 2.The suit is struck out without limiting the grievants' rights to approach the Court with their claims
  3. 3.Time stopped running for the grievants as of 10th January 2013 when they swore the affidavits in support of the claim
  4. 4.Each party shall bear their own costs

Authorities

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Legislation

  • Labour Relations Act, 2007Preamble; section 2 (definitions of recognition agreement and collective agreement); section 4; section 54(1); section 54(3); section 59; Part VII
  • Industrial Court ActSection 12(2)
  • Constitution of Kenya, 2010Article 41(2)(c); Articles 162(2) and 162(3)
  • Trade Unions Act, Cap 233 (repealed)Registration of the Claimant union

Cases cited (2)

  • Law Society of Kenya versus Commissioner of Lands and Others
    Nakuru High Court Civil Case No.464 of 2000, KLR 706
  • Kenya National Private Security Workers Union versus Lavington Security Limited
    [2013] eKLR
Jurisdiction invoked
Articles 41, 162(2) and 162(3) of the Constitution; Industrial Court Act section 12(2); Labour Relations Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Communication Workers’ Union v Safaricom Limited [2014] KEELRC 1302 (KLR)", Case Analysis (2014). Cause No 31 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1302/eng@2014-09-25

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