Dock Workers Union v Kenya Ports Authority [2015] KEELRC 523 (KLR)
The bottom line
#Kenya's Employment Court struck out the Dock Workers Union's case because it could not name the workers it claimed to represent, and disqualified its conflicted advocate.
What this practically means
#Executive summary
#Key legal issues
#Capacity and standing of the Trade Union to bring a representative claim
The Claim was improperly before the Court because the 136 purported Grievants were unnamed, some were Management Staff ineligible for union representation, some had died, fled or filed individual claims.
Although a registered Trade Union enjoys associational standing, rule 9 of the Industrial Court [Procedure] Rules 2010 requires a representative claim to be accompanied by a schedule of names and personal details of the Grievants. The Respondent showed 132 suspected Employees, of whom only 126 remained under investigation, some being Management Staff, 3 deceased, 2 having forfeited employment and 1 resigned. Union membership cannot be presumed from employment, and the Union could not explain the arithmetic of the 136 it claimed to represent.
Whether the Claimant's Advocate, Hon. Mungatana, should be impeached for conflict of interest
Yes; he was disqualified from further representation of the Union.
The Advocate had served as Chairman of the Respondent's Board when the certificate authentication matter was deliberated, chaired the relevant meeting, gave legal advice and directions on amnesty, and deposed to information from confidential internal sources. He denied signing minutes recording the Board meeting, raising questions that would require him to testify. The conflict was serious, the motion was not tactical, and his continued appearance had the appearance of impropriety injurious to public confidence in the profession.
Whether the Court should restrain the Respondent from investigating and disciplining its Employees
No; the Application and entire Claim were struck out.
The Employees admitted forgery of academic certificates as confirmed by the KNEC Report. The Respondent was acting pursuant to a Public Service Commission circular of 27th June 2012 directing authentication of certificates across the public service, and retains the managerial prerogative to investigate and discipline. The Union's pursuit of amnesty before investigations concluded was not legitimate trade unionism; Employees came with tainted hands, and the income earned on forged certificates was not protected wages. ADR mechanisms cannot be used to cover up crime.
Defectiveness of the Application
The Application was technically and substantively defective.
The Application was made under Section 12 of the Labour Institutions Act 2007, which had been repealed in 2011 by the Industrial Court Act 2011, and invoked unspecified Procedure Rules. The Application was therefore defective both technically and substantively.
Legal principles established
#- A Trade Union bringing a representative claim must identify the specific Grievants it represents; associational standing does not extend to representing unknown or 'ghost' employees, and union membership cannot be presumed from employment alone.
- An Advocate who, by reason of prior confidential service (including as chairman of a board), would be a necessary witness or holds confidential information relating to the dispute should be disqualified from acting, unless the motion is a tactical device.
- The employer retains the managerial prerogative to investigate employment offences and impose disciplinary sanctions, particularly where acting pursuant to a Public Service Commission policy, and the Court will not restrain the implementation of a nationwide public policy.
- The law must be unified across fields: wrongdoing that is criminal cannot be sanctified in employment, contract or equity; no party should benefit from its own wrongdoing, and courts will not aid parties perpetuating illegalities.
Court orders
#- 1.The Advocate for the Claimant (Hon. Danson Buya Mungatana) is disqualified from further representation of the Claimant Union.
- 2.The Claim and the Application are misconceived, bad in law, and without merit, and are struck out in their totality.
- 3.Parties shall bear their costs.
- Jurisdiction invoked
- Section 12 of the Labour Institutions Act 2007 (noted by the Court to have been repealed by the Industrial Court Act 2011); Industrial Court [Procedure] Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dock Workers Union v Kenya Ports Authority [2015] KEELRC 523 (KLR)", Case Analysis (2015). Cause No 604 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/523/eng@2015-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.