Amalgamated Union of Kenya Metal Workers v Settlers Engineering Limited [2016] KEELRC 1717 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Locus of the Union to act for the Grievant
The objection was improperly raised within the review application and had already been disallowed by Ongaya J on 2 April 2014, with no appeal against that dismissal.
The Court held that review proceedings were not the proper forum to revisit the Union's standing. The locus question had been determined in a preliminary objection that was disallowed, and no appeal was preferred. The Respondent's statutory objections were also rejected: section 48 Employment Act concerns representation before a Labour Officer; section 23 Labour Institutions Act was repealed by the Industrial Court Act; sections 54 and 73 of the Labour Relations Act were of no assistance.
Whether the dismissal of the Cause for non-attendance should be set aside
Yes. The Union's misunderstanding of the hearing date was corroborated by the representative's travel and adjournment-fee receipts of 29 May 2015 and the Grievant's travel receipt of 28 May 2015, warranting exercise of discretion in the Union's favour.
The Court found documentary evidence (receipts for travel and payment of adjournment fees) corroborating the Union's claim that its representative misheard 28 May 2015 as 29 May 2015. On that basis the Court exercised its discretion to set aside the dismissal and directed the Cause be set down for hearing on the merits.
Respondent's statutory objections to reinstatement
The cited statutory provisions did not bar reinstatement of the Cause.
The Court held that section 48 of the Employment Act deals with representation before a Labour Officer and has no relevance to court representation; section 23 of the Labour Institutions Act was repealed by the then Industrial Court Act; and sections 54 and 73 of the Labour Relations Act were of no assistance to the Respondent on the review application.
Legal principles established
#- Locus of a union to act for a grievant cannot be determined under the guise of a review application where it was already the subject of a disallowed preliminary objection
- A misunderstanding of the hearing date, corroborated by attendance and payment receipts, justifies the exercise of discretion to set aside a dismissal for non-attendance
Court orders
#- 1.The dismissal order of 28 May 2015 is set aside
- 2.The Cause to be set down for hearing on the merits
- 3.Costs in the Cause
- Jurisdiction invoked
- Discretion to review/set aside dismissal of a Cause under the Court's rules (review application); dispute on unlawful and unfair lock out
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amalgamated Union of Kenya Metal Workers v Settlers Engineering Limited [2016] KEELRC 1717 (KLR)", Case Analysis (2016). Not stated in judgment (Cause transferred from Nairobi to Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1717/eng@2016-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.