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ELRCDismissedCause (Memorandum of Claim filed 29 January 2014)· [2016] KEELRC 830 (KLR)

Kenya Union Of Commercial, Food & Allied Workers v Flamco Limited [2016] KEELRC 830 (KLR)

Employment and Labour Relations Court
29 July 2016
RSRadido Stephen
1,717 words in judgment
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The bottom line

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A Kenyan court dismissed a union's recognition claim because it had not signed up a simple majority of employees by the date it formally sought recognition.

What this practically means

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Executive summary

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The Union recruited employees of Flamco Ltd and forwarded check-off forms (78 names) in January and February 2013 seeking a recognition agreement. The Respondent did not respond, and after a trade dispute over terminal dues for 23 laid-off employees, the Union reported a recognition dispute on 4 July 2013. A conciliator appointed by the Cabinet Secretary found the Union had recruited 78 of 226 employees, below the simple majority under section 54 of the Labour Relations Act, and recommended the dispute be vacated. The Union sued, contending that the 38 members recruited during conciliation should have been counted and that a ballot ought to have been ordered. By consent, a ballot was held on 29 August 2014, with 77 employees in favour and 91 against; the Union rejected the results. The court framed three issues: whether the Union had a simple majority at the time of filing, whether the ballot was lawful, and whether the Union was entitled to recognition. The court held that recruitment is continuous but that a cut-off date is necessary, being the point at which the union formally requests recognition; in default of disclosure, it assumed 4 July 2013. As at that date the Union had not met the threshold, and post-dispute recruitment could not count unless the employer consented. The postponement of the ballot was not unilateral, and although uncontroverted testimony suggested unqualified persons voted, the point was not decisive. The Memorandum of Claim was dismissed with no order as to costs, the court citing the anticipated social partnership between the parties.

Key legal issues

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01

Cut-off date for assessing the simple majority threshold under section 54 of the Labour Relations Act

Holding

Recruitment is continuous, but for recognition purposes there must be a cut-off date at the point the union formally seeks recognition; failing disclosure, the date of reporting the trade dispute was assumed (4 July 2013)

Reasoning

Section 54 requires a simple majority but is silent on the timeline for assessing it. The court held that recruitment being continuous does not permit endless aggregation of members; once a union is confident enough to report a dispute or sue, the cut-off should be the formal recognition request. Since the Union did not disclose when it sought recognition, the court assumed the cut-off to be 4 July 2013, the date the trade dispute was reported, and found the threshold unmet.

p. 2
02

Findings of the Conciliator on workforce numbers and recruitment

Holding

The court adopted the Conciliator's finding that the Union had recruited 78 of 226 employees as at the date of the dispute, below the simple majority, and rejected members recruited after the dispute was reported unless the employer consented

Reasoning

The Union alleged the Respondent had not disclosed the number of unionisable employees, but the Conciliator's report recorded 226 employees and the court had no factual basis to disturb that finding. The court agreed with the Conciliator that post-dispute recruitment could not be counted unless the employer consented to inclusion.

p. 3
03

Validity of the balloting exercise of 29 August 2014

Holding

The postponement of the ballot was known to the Union and not unilateral, so it could not void the ballot; but allegations that unqualified persons voted were uncontested, and the court noted the ballot question would not be decisive given its conclusion on the threshold

Reasoning

The Respondent had consulted the Union and a meeting was held before a Labour Officer on 22 August 2014 to work out logistics, so postponement was not unilateral. The Union's Branch Secretary testified that unqualified employees voted, uncontroverted by the Respondent, which would vitiate a ballot, but the court held the point would not be decisive since the threshold question disposed of the claim.

p. 3

Legal principles established

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  • For purposes of determining whether a union has met the simple majority threshold for recognition, there must be a cut-off date, being the point at which the union formally writes to the employer requesting recognition

Court orders

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  1. 1.The Memorandum of Claim filed on 29 January 2014 dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Labour Relations Actsection 54
  • Constitution of Kenya, 2010Article 41
  • ILO Convention No. 87
Jurisdiction invoked
Original jurisdiction over trade disputes relating to recognition under section 54 of the Labour Relations Act and Article 41 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, "Kenya Union Of Commercial, Food & Allied Workers v Flamco Limited [2016] KEELRC 830 (KLR)", Case Analysis (2016). Cause (Memorandum of Claim filed 29 January 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/830/eng@2016-07-29

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