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ELRCOtherCause No 486 of 2018· [2018] KEELRC 875 (KLR)

Kenya Shoe and Leather Workers Union v Slapper Shoe Industry [2018] KEELRC 875 (KLR)

Employment and Labour Relations Court
26 October 2018
JRJames Rika
1,053 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed an employer's redundancy of 44 workers to proceed, ruling that consulting a union's branch office satisfied legal consultation requirements.

What this practically means

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Executive summary

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The Claimant Union filed a claim on 9th October 2018 on behalf of 44 employees of the Respondent, a Mombasa-based company that had issued a Notice of Intended Redundancy on 28th September 2018 after resolving to sell its Plant, Machinery and Equipment to Finlay Brush Ware Limited, a Nairobi company. The Union alleged that the redundancy deviated from Section 40 of the Employment Act 2007 and Clause 12(c) of the parties' Collective Bargaining Agreement, which required prior discussions on the reasons for and extent of redundancy, and sought interim orders restraining the redundancy and compelling compliance with the statutory and CBA procedure. The Respondent, through the affidavit of Personnel Manager Thomas Nyandwaro, showed that employees had been offered transfer to Nairobi, 34 had accepted, and the Union's Branch Secretary had been consulted. The Court found the dispute to be essentially about the lack of consultation with the Union's National Office, but held that the Branch and National Offices should communicate routinely, and that the complaint did not warrant injunctive relief. The Court directed the Respondent to engage with the Union's National Office going forward, held there was nothing left for trial, marked the Claim as concluded and closed the file with no order on costs.

Key legal issues

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01

Adequacy of consultation under Section 40 of the Employment Act and Clause 12(c) of the CBA

Holding

Consultation with the union's Mombasa Branch Office satisfied the consultative requirement; the national office's grievance was an internal communication failure, not a procedural breach by the employer.

Reasoning

The Court noted evidence that the Respondent consulted the Claimant's Branch Secretary and that the Notice was copied to the Branch Secretary, the County Labour Officer and FKE. The complaint was only that the National Office was not consulted, but Branch and National Offices should communicate routinely; the employer's process was otherwise reasonable, including offering transfers to Nairobi to the 44 affected employees.

p. 2
02

Whether injunction restraining redundancy should issue

Holding

No injunction; the union should engage in the process rather than litigate, and the redundancy may proceed.

Reasoning

Both parties agreed a redundancy situation existed. The sale of the plant meant employees would soon have no work in Mombasa, and the Respondent had acted reasonably by offering placement in Nairobi. The Court found the litigation unnecessary and directed the union to negotiate relocation packages and reply to the redundancy notice instead.

p. 2

Legal principles established

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  • Where a redundancy notice discloses consultation with a union's branch office, the union's national office cannot halt the process by litigation but should seek inclusion in the process moving forward
  • A union should consult the employer on a redundancy notice rather than litigate a straightforward redundancy process

Court orders

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  1. 1.The Respondent is at liberty to move ahead with the redundancy process
  2. 2.The Respondent shall engage with the Claimant's National Office, as opposed to the Branch Office
  3. 3.The Claim is marked as concluded and the file closed, with no order on the costs

Authorities

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Legislation

  • Employment ActSection 40
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 and the parties' Recognition Agreement and Collective Bargaining Agreement

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 Shoe and Leather Workers Union v Slapper Shoe Industry [2018] KEELRC 875 (KLR)", Case Analysis (2018). Cause No 486 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/875/eng@2018-10-26

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