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ELRCPartially AllowedNot stated in judgment (suit filed 29th August 2012)· [2016] KEELRC 602 (KLR)

Kenya Union of Domestic, Hotels, Education Institutions, Hospitals and Allied Workers (Kudheiha) v Board of Governors, Moi Girls High School, Nairobi [2016] KEELRC 602 (KLR)

Employment and Labour Relations Court
23 September 2016
MNMathews Nderi Nduma
858 words in judgment
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The bottom line

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A Kenyan school was ordered to pay deducted union dues and sign a recognition agreement because once union membership hits a simple majority, employer cooperation is legally mandatory.

What this practically means

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Executive summary

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The claimant, a registered trade union in the Education sector, sued the respondent school's management for refusing to remit union dues and to sign a recognition agreement. The claimant had recruited 63 non-teaching and subordinate staff and, by letter dated 24th January 2012, forwarded check-off forms signed by those employees, invoking section 19(1) of the Employment Act. The respondent deducted the dues but failed to remit them, and declined to sign a model recognition agreement forwarded on 14th February 2012. The claimant sought payment of the deducted dues (Kshs.47,250), interest, and an order compelling signature of a recognition agreement under section 54(1) of the Labour Relations Act. The respondent denied that 63 employees constituted a simple majority, asserting 128 unionsable employees, and objected that seconded Ministry of Education staff could not be counted and that salaries paid from parents' collections could not be regulated. The court framed two issues: the obligation to deduct and remit dues, and the obligation to recognise the union. On the first, the claimant had served a completed form 5 notice signed by the 63 employees and the respondent had not refuted it, establishing compliance with section 48(2) and (3) of the LRA. On the second, the respondent's assertion of 128 unionsable employees was a bare averment unsupported by documentary proof or witness testimony and could not rebut the claimant's cogent documentary evidence. The court found the 63 employees constituted a simple majority. Judgment was entered for the claimant: the respondent was ordered to remit all deducted dues and continue monthly deductions, to sign a recognition agreement effective from the date of judgment, and to pay the costs of the suit. The claim for interest was not expressly granted in the final orders.

Key legal issues

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01

Whether the respondent was obliged to deduct and remit union dues for the 63 recruited employees

Holding

Yes. The claimant complied with the requirements under section 48(2) and (3) of the Labour Relations Act, and the respondent did not refute these facts.

Reasoning

The court set out four conditions precedent for deduction and remittance of union dues: the employee must be unionsable, must have freely and voluntarily joined the union, the Cabinet Secretary must have issued an enabling order, and a notice of deduction in form 5 must be served. The claimant served a completed form 5 check-off signed by the 63 employees with notices signed by its secretary general. The respondent did not refute these facts, so the claimant proved compliance on a balance of probability.

p. 2
02

Whether the 63 recruited employees constituted a simple majority entitling the union to recognition

Holding

Yes. The claimant proved on a balance of probability that the 63 employees constituted a simple majority of all unionsable employees.

Reasoning

Section 54 of the LRA obliges an employer to recognise a union that has recruited a simple majority of its unionsable employees. The respondent's assertion that it had 128 unionsable employees was a bare averment in the replying memorandum, unsupported by any documentary proof or witness testimony, and could not rebut the claimant's cogent documentary evidence. The court therefore found the simple-majority threshold met.

p. 3

Legal principles established

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  • An employer is obliged to deduct and remit union dues where the employee is unionsable, has freely joined the union, the Cabinet Secretary has issued the enabling order, and a form 5 notice of deduction has been served.
  • An employer must recognise a union once the union recruits a simple majority of its unionsable employees.
  • Bare averments unsupported by documentary proof or witness testimony do not rebut cogent documentary evidence.

Court orders

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  1. 1.The respondent to remit all union dues already deducted from all the 63 employees recruited by the union and continue deducting and remitting the same to the union on a monthly basis from the date of the judgment
  2. 2.The respondent to sign a recognition agreement with the union effective from the date of the judgment
  3. 3.The respondent to pay costs of the suit

Authorities

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Legislation

  • Employment Actsection 19(1)
  • Labour Relations Act, 2007 (No. 14 of 2007)section 48(2) and (3)
  • Labour Relations Act, 2007 (No. 14 of 2007)section 54(1)
  • Labour Relations Act, 2007 (No. 14 of 2007)Form 5, Third Schedule
Jurisdiction invoked
Original jurisdiction over employment and labour relations disputes (Trade Disputes Act/Labour Relations Act, 2007); the judgment does not cite a specific constitutional provision

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, "Kenya Union of Domestic, Hotels, Education Institutions, Hospitals and Allied Workers (Kudheiha) v Board of Governors, Moi Girls High School, Nairobi [2016] KEELRC 602 (KLR)", Case Analysis (2016). Not stated in judgment (suit filed 29th August 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/602/eng@2016-09-23

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