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ELRCPartially AllowedNot stated in the judgment extract· [2016] KEELRC 684 (KLR)

Transport and Allied Workers Union v Rapid Kate Services Limited & another [2016] KEELRC 684 (KLR)

Employment and Labour Relations Court
23 September 2016
1,094 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that employees validly resigned from a union using signed forms sent by a shop steward, and ordered their new union's collective agreement registered.

What this practically means

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Executive summary

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This first-instance Employment and Labour Relations Court judgment at Nairobi, delivered by Linndolo Ndolo J on 23 September 2016, concerned a trade union representation dispute over the 1st Respondent's unionisable employees as between the Claimant and the 2nd Respondent, both registered trade unions. The Claimant, which had a Recognition Agreement with the 1st Respondent and claimed 90% majority membership, sought registration and implementation of a CBA negotiated for 2016-2018, a declaration that it was the most representative union, and an injunction restraining the 2nd Respondent from encroaching on its members. The 1st Respondent conceded 90% membership and asked for the CBA to be registered, noting only the Conciliator's finding that due process was not followed in executing it. The 2nd Respondent contended the resignations of its members, communicated via a shop steward's letter with signed forms, were procedurally irregular under Section 48 of the Labour Relations Act, and faulted the Claimant's member list for not being on official letterhead under Section 48(2). The Court held that Sections 48(7) and (8) impose no format requirement for resignation and found no evidence of coercion; applying Article 159(2) of the Constitution, it dismissed the technical objections. Finding the Claimant enjoys a membership majority (216 of 231 employees), the Court directed that the CBA be presented to a Judge for registration. Each party was ordered to bear its own costs.

Key legal issues

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01

Validity of mass resignations from a trade union communicated through a shop steward

Holding

The resignations were valid; the Conciliator's objection to the format was without basis as Section 48(7) and (8) imposes no such format requirement and there was no evidence of coercion

Reasoning

The Court examined Sections 48(7) and (8) of the Labour Relations Act and found no provision prescribing the format for resignation or barring employees from resigning via signed forms forwarded by a shop steward's covering letter. The only ground for interference would be evidence of coercion, none of which was presented. Applying Article 159(2), substantive justice overrides objections based on want of form.

p. 3
02

Technical objections to the member list format under Section 48(2)

Holding

The objection that the list was not on official letterhead was rejected under the Article 159(2) standard and the documents were considered on merit

Reasoning

The 2nd Respondent argued the Claimant's member list failed the Section 48(2) letterhead requirement. The Court held that applying the Article 159(2) standard of substantive justice without undue regard to technicalities, this argument, like the format objection to the resignations, would 'befall the same fate' and the documents were considered on merit.

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03

Majority membership and entitlement to CBA registration

Holding

The Claimant enjoys majority membership (216 of 231 unionisable employees) and the CBA with the 1st Respondent should proceed to registration

Reasoning

The 1st Respondent filed a list showing a unionisable establishment of 231 employees, 216 of whom were members of the Claimant, and conceded 90% membership while asking the Court to register the CBA. The Court found the Claimant enjoys a membership majority and saw no reason to deny employees the benefits of a CBA, directing that the CBA be presented to a Judge for registration.

p. 3

Legal principles established

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  • Section 48(7) and (8) of the Labour Relations Act does not bar employees from resigning from a trade union by appending signatures to a form forwarded via a covering letter from their shop steward; absent coercion, such resignations are valid
  • Substantive justice prevails over technicalities under Article 159(2) of the Constitution

Court orders

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  1. 1.That the CBA negotiated by the Claimant and the 1st Respondent shall be presented to a Judge of this Court for registration
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Labour Relations ActSection 48
  • Labour Relations ActSection 48(2)
  • Labour Relations ActSection 48(7) and (8)
  • Constitution of KenyaArticle 159(2)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over trade union recognition and CBA registration disputes under the Labour Relations Act; substantive justice under Article 159(2) of the Constitution

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, "Transport and Allied Workers Union v Rapid Kate Services Limited & another [2016] KEELRC 684 (KLR)", Case Analysis (2016). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/684/eng@2016-09-23

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