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ELRCPartially AllowedCause No 994 of 2010· [2019] KEELRC 519 (KLR)

Kenya Hotels and Allied Workers Union v Kentmere Club (2986) Ltd [2019] KEELRC 519 (KLR)

Employment and Labour Relations Court
18 October 2019
ANAbuodha Jorum Nelson
859 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Kenya Hotels and Allied Workers Union claimed that it had recruited a simple majority (about 96%) of the Kentmere Club's unionisable employees between October 2008 and March 2009, that union dues deductions had commenced under section 48 of the Labour Relations Act, 2007, and that the respondent's management refused to sign a recognition agreement forwarded on 3 July 2009. The dispute was reported to the Minister as a trade dispute; a conciliator was appointed, but the respondent failed to attend conciliation meetings, resulting in a certificate of unresolved dispute and referral to the Court. The respondent, through its director Hezron Owalo, denied refusing access for recruitment, asserted that the union had recruited only 9 of its 53 workers, and contended that the claimant had lost its majority because most of the employees recruited in 2008 had since resigned or retired, as demonstrated in Cause No 1588 of 2015. Holding that recognition is a transient process that cannot be ordered retrospectively, and noting that both parties conceded the unionisable workforce had significantly dwindled since the suit was filed in 2010, the Court declined to compel immediate signing of a recognition agreement. Instead, it ordered that the claimant be given access, on reasonable notice and at the respondent's convenience, to recruit unionisable members, and that if a simple majority under the Labour Relations Act is attained, both parties should sign a recognition agreement. Judgment was delivered at Nairobi on 18 October 2019 by Abuodha Jorum Nelson, Judge.

Key legal issues

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01

Whether the Court could compel recognition of the union years after the dispute arose

Holding

The Court declined to make a retrospective recognition order and instead ordered fresh recruitment access so that the current simple majority could be established.

Reasoning

The suit was filed in 2010, eight years before judgment, and both parties conceded the unionisable staff had significantly dwindled. Because recognition depends on the existence of a simple majority of unionisable employees at the relevant time, and that position could not be established retrospectively, the Court crafted a practical order allowing the union access to the premises to recruit and, if a simple majority is attained, for both parties to sign a recognition agreement.

p. 2

Legal principles established

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  • Recognition is a transient process; an employer is not bound to sign a recognition agreement where, at the relevant time, it does not employ a simple majority of unionisable employees.
  • Recognition cannot be ordered retrospectively; it depends on the simple majority existing at the time.

Court orders

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  1. 1.The claimant is granted access, upon reasonable notice and at the respondent's convenience, to the respondent's premises to recruit unionisable members
  2. 2.If a simple majority as provided under the Labour Relations Act is attained, both parties should sign a recognition agreement

Authorities

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Legislation

  • Labour Relations Actsection 48
Jurisdiction invoked
Referral of an unresolved trade dispute by the Minister under the Labour Relations Act, 2007

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 Hotels and Allied Workers Union v Kentmere Club (2986) Ltd [2019] KEELRC 519 (KLR)", Case Analysis (2019). Cause No 994 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/519/eng@2019-10-18

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