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ELRCOtherNot stated in judgment· [2018] KEELRC 1796 (KLR)

Agility Logistics Limited v Kenya Long Distance Truck Driver and Allied Workers Union [2018] KEELRC 1796 (KLR)

Employment and Labour Relations Court
31 May 2018
HWHellen Wasilwa
884 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused union recognition because the union could not prove it represented a simple majority of workers.

What this practically means

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Executive summary

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This ruling arose from a court order of 17/12/2015 referring the dispute to a Conciliator to conduct a fact-finding mission to establish union membership at the Claimant's premises and report back. The Conciliator filed a report dated 7/3/2016 indicating that the Respondent union had recruited 174 members out of 275 unionisable employees as at January 2016. The Respondent applied to cross-examine the Conciliator, who reiterated that he had visited the company on 12/2/2016 in the presence of the parties' representatives, was given a list showing a workforce of 324, and extracted check-off data showing 96 members paying union dues as at January 2016. He explained he could not conduct a head count because many union members were drivers away on trips and he had no check-off list from the union to verify the claimed 174 recruits. In submissions, the Respondent urged that the report was unreliable and biased, that its check-off lists proved a simple majority, and sought recognition. The Claimant defended the report, noting the Respondent's presence during the exercise and that the purported 13 additional names were phantom entries designed to inflate membership. The Court, exercising jurisdiction under Section 15(4) of the Employment and Relations Court Act, found no reason to doubt the Conciliator's report and held that the Respondent had not achieved the requisite number of members to warrant recognition. The Respondent was encouraged to continue recruiting and resubmit its application. The suit was marked as closed with no orders as to costs.

Key legal issues

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01

Whether the Conciliator's report should be accepted

Holding

The Court adopted the Conciliator's report without reservation

Reasoning

The Conciliator conducted a fact-finding mission at the employer's premises under the Court's directions of 17/12/2015, was cross-examined, and his findings were not shaken. The Claimant noted that the Respondent raised no contemporaneous complaint about the exercise. The Court therefore found no reason to doubt the report.

p. 2
02

Whether the Respondent attained a simple majority

Holding

The Court held the Respondent had not achieved the requisite number of members

Reasoning

The Conciliator reported 174 members recruited out of 275 unionisable employees per the union's March 2016 figures, but he had no check-off list from the union to verify these numbers, while check-off records from the company showed only 96 members paying dues. A head count was impracticable. On this unverified evidence the union could not demonstrate a simple majority.

p. 2

Legal principles established

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  • A union seeking recognition must achieve the requisite simple majority of unionisable employees before recognition can be granted

Court orders

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  1. 1.The Court found that the Respondent has not achieved the requisite number of members to warrant recognition
  2. 2.The Respondent was encouraged to continue recruiting members to achieve the threshold and then resubmit their application for recognition
  3. 3.The suit was marked as closed
  4. 4.No orders as to costs
Jurisdiction invoked
Section 15(4) of the Employment and Relations Court Act

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, "Agility Logistics Limited v Kenya Long Distance Truck Driver and Allied Workers Union [2018] KEELRC 1796 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1796/eng@2018-05-31

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