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ELRCDismissedCause filed 20th May 2013 (number not stated in judgment)· [2016] KEELRC 45 (KLR)

Tailors And Textiles Workers Union v Alpha Knits [2016] KEELRC 45 (KLR)

Industrial Court (Employment and Labour Relations Court)
8 September 2016
MMM. Mbaru
1,712 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled a union's unfair dismissal claim, filed nearly six years after dismissal, could proceed because the employer's objections failed.

What this practically means

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Executive summary

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Alpha Knits Ltd raised a preliminary objection against a claim filed by the Tailors and Textiles Workers Union on 20th May 2013 on behalf of grievant Zippora Gesare Gichana, who was dismissed in October 2007. The respondent argued that, under the transitional provisions of the Fifth Schedule of the Labour Relations Act No. 7 of 2007, the dispute was governed by the repealed Trade Disputes Act; that the claimant failed to report the dismissal dispute to the Minister within 28 days as required by section 4(4) of the Trade Disputes Act; that the claimant failed to comply with section 14(9)(b) and section 4(4); and that the suit should therefore be struck out. The claimant countered that the dispute was reported to the Minister on 21st November 2007, that conciliation meetings were convened and memoranda invited, and that the objections were frivolous technicalities. The court found that the cause of action predated the commencement of the Labour Relations Act, Labour Institutions Act and Employment Act on 2nd June 2008, so the Trade Disputes Act applied. It held that the claimant had reported the dispute in good time, within the 28-day window, and that the claim filed on 20th May 2013 fell within the six-year limitation period under the Limitation of Actions Act. The Minister's failure to issue a report could not be visited on the claimant. The preliminary objection was dismissed, the respondent was directed to file its defence, and the matter was set down for hearing of the main claim.

Key legal issues

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01

Compliance with section 4(4) of the Trade Disputes Act (repealed) on reporting dismissal disputes to the Minister

Holding

The claimant complied, having reported the dispute on 21st November 2007, well within 28 days of the October 2007 dismissal.

Reasoning

The grievant was dismissed on 23rd October 2007. The claimant reported the dispute to the Minister on 21st November 2007, and the Minister invited the parties to meetings by letters of 13th December 2007 and thereafter. This was within the 28-day window. The Minister never issued a report despite inviting memoranda on 10th June 2008, so the dispute remained unresolved and ripe for filing in court.

p. 3
02

Limitation of the claim

Holding

The claim, filed on 20th May 2013, fell within the six-year limitation period applicable to trade union disputes under the Limitation of Actions Act.

Reasoning

The cause of action arose before the Labour Relations Act, Labour Institutions Act and Employment Act commenced on 2nd June 2008, so the Trade Disputes Act regime applied. Disputes filed by trade unions were subject to a six-year limitation period. The claim filed on 20th May 2013 was a few months before the lapse of six years, hence within time and within the court's jurisdiction.

p. 3
03

Whether the preliminary objection was a proper point of law warranting striking out

Holding

The objection failed; the merits involve matters of evidence to be determined at the hearing of the main claim.

Reasoning

The respondent argued, citing Mukisa Biscuits, that the objection raised pure questions of law on limitation and non-compliance with section 4(4) of the Trade Disputes Act. The court found the claimant had complied with the applicable transitional and reporting requirements, so the objection failed. The facts in dispute remain matters of evidence for the hearing of the main suit.

p. 4

Legal principles established

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  • A claimant who reports a dismissal dispute to the Minister in good time and files suit within the six-year limitation period complies with the applicable law, and delay by the Minister in concluding conciliation cannot be visited on the claimant.

Court orders

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  1. 1.The preliminary objection raised by the Respondent is dismissed
  2. 2.The Respondent shall file its defence
  3. 3.The matter to be set down for hearing of the main claim

Authorities

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Legislation

  • Labour Relations Act No. 7 of 2007Fifth Schedule, Transitional Provisions Clause 4(a); clause 2(4); section 17
  • Trade Disputes Act, Cap 234 (repealed)Sections 4(1)-(4), 14(9)(b)
  • Labour Institutions Act
  • Employment Act
  • Limitation of Actions ActSix-year limitation period

Cases cited (4)

  • Mukisa Biscuits Manufacturing Co. Ltd versus West End Distributors Ltd
    [1969] E.A.
  • Tailors and Textiles Workers Union versus Moi University and Rivertex E.A. Ltd
    Cause No. 1981 of 2011
  • Ayub Asamba versus Telkom Ltd
    Cause No. 164 (N) of 2009
  • Joseph Mbasi Muthama & Others versus BAT
    Cause Nos. 857, 858 and 859 of 2010
Jurisdiction invoked
Jurisdiction as the court seized with employment and labour disputes; transitional provisions of the Labour Relations Act No. 7 of 2007, Fifth Schedule Clause 4(a)

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, "Tailors And Textiles Workers Union v Alpha Knits [2016] KEELRC 45 (KLR)", Case Analysis (2016). Cause filed 20th May 2013 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/45/eng@2016-09-08

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