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ELRCPartially AllowedNot stated in judgment (Notice of Motion dated 23rd August 2018)· [2018] KEELRC 180 (KLR)

Kenya Tertiary and School Workers Union v Rocky Driving School [2018] KEELRC 180 (KLR)

Employment and Labour Relations Court
3 December 2018
HWHellen Wasilwa
2,987 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court protected workers from being harassed or transferred for joining a union, but put off deciding union recognition until a full hearing.

What this practically means

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Executive summary

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The Kenya Tertiary & School Workers' Union moved the Employment and Labour Relations Court by Notice of Motion dated 23rd August 2018 against Rocky Driving School Limited, seeking interim restraint of harassment and intimidation of union members, a stay of punitive transfers of member Raymond Kadhengi Ziro to Kisumu, an order for deduction and remittance of union dues and accrued dues, an order compelling the Respondent to sign a Recognition Agreement, and costs. The Union relied on check-off forms and invoked sections 48, 54 and 73 of the Labour Relations Act, section 12 of the ELRC Act and Article 41 of the Constitution. The Respondent, through its HR Manager Hellen Anyiso, opposed, contending the recruitment list contained non-employees and management staff, that after verification only 73 of 177 unionisable employees had been recruited, below the 50+1% threshold for recognition, that dues deductions had partly commenced, and that the Union bypassed conciliation. Ex-parte interim orders had been granted by J. Onyango on 27/08/2018. Justice Hellen Wasilwa declined to order recognition at the interlocutory stage because that relief mirrored the main claim, but held that employees who signed check-off forms enjoy an Article 41 right to join the union that cannot be taken away. She confirmed the interim orders restraining harassment and punitive transfers to remain in force pending hearing and determination of the claim, with costs in the cause.

Key legal issues

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01

Whether the interim orders restraining harassment and punitive transfers should be confirmed

Holding

The interim orders granted ex-parte by J. Onyango were confirmed to remain in force pending hearing and determination of the claim

Reasoning

The court found that employees who have signed check-off forms and desire to join the union hold a constitutional right under Article 41 that cannot be taken away. On that basis the ex-parte interim orders protecting union members from harassment, intimidation and punitive transfers were confirmed pending full hearing of the claim.

p. 4
02

Whether recognition should be ordered at the interlocutory stage

Holding

Refused; recognition orders mirror relief sought in the main claim and must await full determination

Reasoning

The court noted that part of the orders sought in the application, notably the quest for recognition, are similar to those sought in the main claim. It declined to grant recognition at the interlocutory stage until the issues in the claim are thrashed out at the full hearing.

p. 4

Legal principles established

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  • Where employees have signed check-off forms and desire to join a union, that right cannot be taken away by anyone as it is guaranteed under Article 41 of the Constitution

Court orders

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  1. 1.Interim orders granted by J. Onyango on 27/08/2018 confirmed, restraining the Respondent from harassing or intimidating Claimant Union members and from infringing their right to freely join or participate in trade union activities
  2. 2.Stay of execution confirmed against punitive, discriminative transfers of Mr. Raymond Kadhengi Ziro to Kisumu and of any other Claimant Union member pending hearing and determination of the claim
  3. 3.Orders to remain in force pending hearing and determination of the claim
  4. 4.Costs in the cause

Authorities

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Legislation

  • Labour Relations Act 2007Sections 2, 4(1), 48(3), 54(1), 54(6) and (7), 65, 69(b), 73(2)(a), 74(a)
  • Labour Institutions Act 2007Section 48
  • Employment and Labour Relations Court ActSection 12(ii), (iii) & (iv)
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 17(3)
  • Employment Act 2007Section 46(d)
  • Constitution of Kenya 2010Articles 36, 41, 159

Cases cited (8)

  • Kudheiha Workers Union –vs- Aga Khan University Hospital
    [2015] eKLR
  • Kenya Hotels & Allied Workers Union –vs- Sentrim Kenya Limited & Another
    Cause No. 2145 of 2014
  • Kenya Union of Sugar Plantation & Allied Workers –Vs- Mumias Sugar Company Limited
    Cause No. 19 of 2013
  • Aviation and Allied Workers Union v Kenya Civil Aviation Authority
    Cause No. 35 of 2011
  • Kenya Game Hunting and Safari Workers Union v Lewa Wildlife Conservancy
    Cause No. 1567 of 2011
  • Francis Gitau Parsimei & 2 others –v- The National Alliance Party and 4 Others
    (2012) eKLR
  • National Bank of Kenya v Pipelastic Samkolit (K) Ltd & another
    [2001] eKLR
  • Kenya National Union of Nurses -V- Kenyatta National Hospital Board
    Cause No. 1283 of 2016
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act 2014; Sections 48, 54, 73 of the Labour Relations Act 2007; Section 48 of the Labour Institutions Act 2007; Rule 17(3) ELRC (Procedure) Rules 2016

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 Tertiary and School Workers Union v Rocky Driving School [2018] KEELRC 180 (KLR)", Case Analysis (2018). Not stated in judgment (Notice of Motion dated 23rd August 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/180/eng@2018-12-03

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