Kenya Union of Commercial Food and Allied Workers v New Adatia Wholesalers Limited [2018] KEELRC 2469 (KLR)
The bottom line
#Kenya's Employment Court confirmed that once an employer receives a valid union check-off list, it must implement dues deductions and cannot grill employees about their union membership.
What this practically means
#Executive summary
#Key legal issues
#Recognition threshold under Section 54(1) of the Labour Relations Act
The claimant proved on a balance of probabilities that it had recruited a simple majority of the unionisable employees and was eligible for recognition
Comparing the check-off list of 24th March 2016 against the employer's own employee lists filed in court, the court was satisfied the same persons had joined the union by 24th March 2016. Even after discounting 21 purported withdrawal letters, the union retained 44 of 88 unionisable employees, i.e. more than 50%. The conciliator's adverse finding was discounted as he was not a handwriting expert.
Employer's duty upon receipt of a check-off list
The employer's only duty is to implement deductions unless it receives a written complaint from an affected employee denying voluntary membership
The court held that once a statutory check-off list is served, the employer cannot confront employees individually to interrogate their union membership. Withdrawal under Section 48(6) is only effective upon written notification by the employee. This protects freedom of association under Section 5 of the Act and Article 41 of the Constitution.
Authenticity of the withdrawal letters
The court found the withdrawals were not genuine but the product of intimidation of union members by the Respondent
The claimant placed on oath allegations of intimidation which the court found credible. It found it implausible that employees who had voluntarily joined the union would, within days, write withdrawal letters without any reason. The court directed the Respondent to desist from violating Section 5 of the Act and Article 41 of the Constitution.
Legal principles established
#- An employer served with a check-off list issued under the Labour Relations Act must implement the deductions and may not individually interrogate employees about their union membership, unless it receives a written complaint from an affected employee that he or she did not join the union voluntarily
- A check-off form is a statutory document issued by the Minister under Section 48(2) and (3) of the Labour Relations Act and is presumed to be valid unless proved otherwise
- A conciliator who is not a handwriting expert has no basis for concluding that signatures on a check-off list are not genuine
Court orders
#- 1.The Respondent is directed to sign a Recognition Agreement with the claimant union within thirty (30) days of the judgment
- 2.The Respondent is directed to remit all arrear union dues to the claimant union in the sum of Kshs. 428,000/- as prayed, less any amount already remitted, and continue to remit on a monthly basis
- 3.The claimant to pay interest at court rates in respect of the Kshs. 428,000/- union dues quantified from date of filing suit till payment in full
- 4.The Respondent to pay costs of the suit
- 5.The Respondent is directed to desist from violating Section 5 of the Labour Relations Act as read with Article 41 of the Constitution (freedom of association)
- Jurisdiction invoked
- Section 54 of the Labour Relations Act, 2007 (employment and labour relations dispute; Article 41 of the Constitution of Kenya, 2010 engaged)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial Food and Allied Workers v New Adatia Wholesalers Limited [2018] KEELRC 2469 (KLR)", Case Analysis (2018). Memorandum of Claim dated 20th December 2016 (ELRC, Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2469/eng@2018-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.