Kenya Engineering Workers Union v Narcol Aluminium Rolling Mills Limited [2015] KEELRC 724 (KLR)
The bottom line
#A Kenyan court dismissed a union's claim for 90 workers, finding no lockout occurred and the union's recruitment involved forged signatures.
What this practically means
#Executive summary
#Key legal issues
#Whether a lockout occurred
No lockout was established as defined under Section 2 of the Employment Act 2007; the Respondent neither locked its premises, suspended work, nor refused to employ the Employees
The Court relied on the Labour Office's independent investigation which found most Employees resumed duty on 16th January 2013, while others deserted after attempting to sabotage production. There was no evidence of padlocks, chains, or suspension of operations, and Employees who returned were at work. The Claimant led no evidence contradicting these findings to show an employer refusal to continue employment for the purpose of compelling acceptance of a trade dispute demand.
Whether the Employees were victimized for joining the Claimant Union
No victimization was established; the Check-Off Forms were shown by witnesses from both sides to bear forged signatures, tainting the recruitment process
The Claimant's own witness Katuthi disowned the signature on his Check-Off Form, and Respondent witnesses Ambale and Kingoo did the same. The Court found the recruitment process tainted with lack of free will and thus could not conclude any Employee was victimized for union membership. The Labour Officer also faulted the Forms for lacking full employee details.
Whether the Employees deserted their employment
The Employees engaged in an illegal strike and sabotaged production, then deserted; they terminated their own contracts through gross misconduct
The Respondent's witnesses and the Labour Officer established that some Employees left melted aluminum in the furnace, risking damage to production lines, and then deserted. The Respondent was justified in treating this as gross misconduct; hearing the Employees was impossible given their self-caused absence from the workplace.
Whether the Court could order reinstatement of casual or term-contract Employees
Reinstatement could not be ordered because the Employees were casual or on term contracts, and the contracts were not availed to the Court
The Claimant's witnesses admitted they worked initially on casual terms, then on 3 months' contracts, and reverted to casual terms. Under Section 2 of the Employment Act, a casual Employee is engaged for not longer than 24 hours at a time. A blanket unlocking order would impose regular employment status contradicted by the Employees' own evidence, and no term contract documents were produced.
Whether documents annexed to Closing Submissions could be relied upon
The bundle of documents introduced through the Claimant's Closing Submissions was expunged
Relying on its earlier KUDHEIHA decision and Rules 17 and 26(1) of the Industrial Court Procedure Rules 2010, the Court held that documents intended to be relied upon must be identified in pleadings and availed before trial, and that Closing Submissions are for summing up, not for introducing fresh evidence that denies the other party a fair hearing.
Legal principles established
#- Closing Submissions do not provide a party with an avenue for introducing fresh evidence
- Freedom of association is based on free will, and Check-Off Forms must reflect the free will of the Employee
- Check-Off Forms must reflect the full details appearing in the employment record of the Employee
- The Court cannot compel an Employer to reinstate a casual Employee outside the 24 hours of such casual engagement
Court orders
#- 1.The Claim is dismissed in its entirety
- 2.The Claimant Union is severely reprimanded for engaging in illegal and irregular recruitment of Employees into the Trade Union
- 3.Costs to the Respondent
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya (Industrial Court jurisdiction over employment and labour relations disputes) read with Rule 27(1)(a) of the Industrial Court Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Engineering Workers Union v Narcol Aluminium Rolling Mills Limited [2015] KEELRC 724 (KLR)", Case Analysis (2015). Industrial Court Cause Number 7 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/724/eng@2015-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.