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ELRCPartially AllowedCause No 296 of 2013· [2018] KEELRC 795 (KLR)

Transport Workers Union v Glory Driving School [2018] KEELRC 795 (KLR)

Employment and Labour Relations Court
26 October 2018
RSRadido Stephen
705 words in judgment
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The bottom line

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Kenya's Employment Court revived a union's dismissed case because the other side never got notice of the hearing, but made the union's lawyer pay for the mistake.

What this practically means

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Executive summary

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The Transport Workers Union sued Glory Driving School in 2013 over alleged unfair redundancy of 44 members, underpayment of statutory minimum wages contrary to section 48 of the Labour Institutions Act and the parties' CBA, and intimidation of members. When the Cause came up for hearing on 5 April 2018, the Union's advocate sought an adjournment because she could not trace her witnesses; the Respondent was absent and the Court dismissed the Cause. The Union then applied on 20 April 2018 for review and setting aside of the dismissal order. The Respondent opposed, arguing the depositions were speculative, no hearing notice had been served as directed by the Deputy Registrar on 26 September 2017, and there was inordinate delay. The Court found the application, filed within ten days, was not delayed. It noted the absence of any evidence that the Union served the hearing notice as directed, and that the Union did not respond to the Respondent's assertion of non-service, making it impossible to tell whether the adjournment application was made in good faith. Holding that notice of a hearing fixed in a party's absence is a cardinal feature of natural justice, the Court concluded the hearing could not fairly have proceeded on 5 April 2018. It allowed the review on condition that the Union's advocate on record pay the Respondent costs of Kshs 15,000/- within 15 days, failing which the Cause would stand dismissed, with costs of the application in the cause.

Key legal issues

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01

Whether there was inordinate delay in filing the review application

Holding

No - the application filed within 10 days of the dismissal order did not constitute inordinate delay

Reasoning

The Court examined the timeline between the dismissal of the Cause on 5 April 2018 and the filing of the application on 20 April 2018. A period of ten days was found too short to amount to inordinate delay, distinguishing the delay argument as a ground of opposition without substance on the facts.

p. 2
02

Whether the dismissal of the Cause breached natural justice

Holding

Yes - the Union never served the hearing notice as directed, so the hearing and dismissal on 5 April 2018 could not fairly proceed

Reasoning

The Deputy Registrar had on 26 September 2017 directed the Union to serve a hearing notice. No evidence of service appeared on the record, and the Union did not rebut the Respondent's assertion of non-service. Since notice of a hearing fixed in a party's absence is a cardinal element of natural justice, the dismissal was unfair and the review was warranted, albeit on condition of costs against the Union's advocate.

p. 2

Legal principles established

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  • Notifying the other side of a hearing date fixed in their absence is a cardinal characteristic of natural justice in an adversarial system
  • A hearing cannot fairly proceed where the hearing notice directed by the court has not been served

Court orders

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  1. 1.The application to review and set aside the order of 5 April 2018 dismissing the Cause is allowed
  2. 2.The Union's advocate on record to pay the Respondent costs of Kshs 15,000/- within 15 days
  3. 3.In default of payment, the Cause to stand dismissed
  4. 4.Costs of the application in the cause

Authorities

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Legislation

  • Labour Institutions Actsection 48
Jurisdiction invoked
Inherent review jurisdiction of the Employment and Labour Relations Court (application to review and set aside the dismissal order of 5 April 2018)

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 Workers Union v Glory Driving School [2018] KEELRC 795 (KLR)", Case Analysis (2018). Cause No 296 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/795/eng@2018-10-26

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