Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedMemorandum of Claim dated 20th December 2016 (ELRC, Bungoma)· [2018] KEELRC 2469 (KLR)

Kenya Union of Commercial Food and Allied Workers v New Adatia Wholesalers Limited [2018] KEELRC 2469 (KLR)

Employment and Labour Relations Court
26 January 2018
1,090 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

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

#
The claimant union sued for recognition by the Respondent under Section 54 of the Labour Relations Act, 2007, and for payment of Kshs. 428,000/- in arrear union dues with interest, asserting that it had recruited 65 of the Respondent's 88 unionisable employees (73.8%). The Respondent opposed the claim, contending the union had not recruited a simple majority, and relied on a conciliation report by the County Labour Officer, Bungoma, which found only 35 of 89 names authentic and recommended fresh recruitment. The court compared the check-off list dated 24th March 2016 with the employer's own employee lists and found they contained the same persons who had joined the union by that date. It discounted the conciliator's adverse finding, holding that a conciliator who is not a handwriting expert had no basis to impugn signatures. The court held that an employer served with a statutory check-off form must implement deductions and may not interrogate employees individually, absent a written complaint of non-voluntary membership, the form being presumed valid under Section 48. Although the Respondent produced some twenty-one withdrawal letters, the court found the claimant's sworn allegations of intimidation credible and held that even discounting the withdrawals the union retained 44 of 88 employees, a simple majority. The court entered judgment for the claimant: the Respondent was directed to sign a Recognition Agreement within thirty days, to remit the arrear dues of Kshs. 428,000/- less amounts already paid and continue monthly remittances, with interest at court rates from filing, and to pay the costs of the suit.

Key legal issues

#
01

Recognition threshold under Section 54(1) of the Labour Relations Act

Holding

The claimant proved on a balance of probabilities that it had recruited a simple majority of the unionisable employees and was eligible for recognition

Reasoning

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.

p. 2
02

Employer's duty upon receipt of a check-off list

Holding

The employer's only duty is to implement deductions unless it receives a written complaint from an affected employee denying voluntary membership

Reasoning

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.

p. 2
03

Authenticity of the withdrawal letters

Holding

The court found the withdrawals were not genuine but the product of intimidation of union members by the Respondent

Reasoning

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.

p. 2

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. 1.The Respondent is directed to sign a Recognition Agreement with the claimant union within thirty (30) days of the judgment
  2. 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. 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. 4.The Respondent to pay costs of the suit
  5. 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)

Authorities

#

Legislation

  • Labour Relations Act, 2007Section 54(1)
  • Labour Relations Act, 2007Section 48(2) and (3)
  • Labour Relations Act, 2007Section 48(6)
  • Labour Relations Act, 2007Section 5
  • Constitution of Kenya, 2010Article 41

Cases cited (1)

  • Kenya Union of Commercial Food & Allied Workers Vs. Jade Collection Limited
    ELRC No. 526 of 2014
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.