Transport And Allied Workers Union v Societe Internationale De Telecommunication Aeoronautiques (Sita) [2016] KEELRC 1804 (KLR)
The bottom line
#Kenya's Employment Court dismissed the union's redundancy claim, ruling the same issue had already been decided and the retrenchment followed the law.
What this practically means
#Executive summary
#Key legal issues
#Res judicata and issue estoppel in union-sponsored suits over CBA benefits
The claim for grossing up redundancy dues is res judicata, being the same issue as was determined by Rika J in Cause No 109 of 2010; the Court lacks jurisdiction over it
The Court compared the pleadings, submissions and award in the Mike Odero Case with the present claim and found that, despite different terminology (tax exemption versus grossing up), the complaint in both cases concerned the Respondent's failure to apply the previous company practice of providing a tax cushion under Clause 24.5 of the CBA. Because both cases turned on interpretation of the same CBA clause, the prior determination bound the union, employer and all unionisable employees.
Identification of parties in labour disputes for purposes of res judicata
Where the subject matter is assignable to a specific grievant, only the grievant and employer are bound; where the subject matter is CBA interpretation, the determination binds the union, employer and all unionisable employees
The Court reasoned that in labour matters the identity of parties is complex because unions sue on behalf of members. When a claim concerns an individual grievant's entitlement, the decision binds only that grievant and the employer, leaving the union free to litigate for others. But CBA interpretation disputes have wider applicability, so a determination on such a dispute binds everyone covered by the CBA, presently or in the future, preventing repeated suits with different grievants.
Lawfulness of the redundancy
The redundancy was lawful: notification of reasons and extent was adequate, and failure to observe LIFO did not render it unlawful where an entire cost centre was shut down and no suitable vacancies existed
Section 40(a) of the Employment Act required one month's notice of the reasons and extent of the redundancy to the union; evidence of written communication and a teleconference satisfied this despite the union's complaint of lack of meaningful engagement, as no details of what was missing were given. On LIFO, Murgor JA's authority establishes it is not the sole criterion. The CUTE contract termination abolished the entire cost centre and no evidence of suitable vacancies existed, so the redundancy was bona fide.
Legal principles established
#- In a suit brought by a trade union on behalf of a specific grievant, only the grievant and the employer are bound by the decision, and the union may sue for other grievants; but determinations on CBA interpretation bind the union, employer and all unionisable employees, barring multiple suits under the guise of varying grievants
- The LIFO principle is not the sole criterion in declaring redundancies; it must be combined with skill, ability, reliability and the labour needs of the employer
- Res judicata and issue estoppel require the same parties, same issues and a final determination by a court of competent jurisdiction
Court orders
#- 1.The Claimant's claim is dismissed
- 2.Each party to bear its own costs
- Jurisdiction invoked
- Article 162(2) of the Constitution establishing the Employment and Labour Relations Court (court exercising first-instance jurisdiction over employment and labour relations disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Transport And Allied Workers Union v Societe Internationale De Telecommunication Aeoronautiques (Sita) [2016] KEELRC 1804 (KLR)", Case Analysis (2016). Cause No 1947 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1804/eng@2016-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.