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ELRCAllowedPetition No 6 of 2019· [2019] KEELRC 683 (KLR)

Universities Academic Staff Union (UASU) Tum Chapter v Technical University of Mombasa [2019] KEELRC 683 (KLR)

Employment and Labour Relations Court
9 October 2019
3,251 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court suspended a university policy that increased lecturers' workloads, ruling employers cannot change job terms without genuinely consulting affected employees.

What this practically means

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Executive summary

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The Petitioner, a chapter of UASU representing teaching staff at the Technical University of Mombasa, moved the Court by Notice of Motion seeking an injunction to suspend a new Academic Policy effective September 2019 which increased lecturers' teaching load from 3 to 4 units per semester. The Petitioner argued the policy was imposed without consultation, in breach of the CBA, natural justice and Article 232(d) of the Constitution, and would cause financial loss since the 4th unit was previously paid part-time work. The Respondent, through its Legal Officer Sarah E. Okumu, contended the Council had statutory mandate under the University Statutes and Charter to review the Academic Policy as a cost-cutting measure amid budgetary constraints; that union officials attended a consultative meeting on 21st September 2018 and gave consent; and that consultation does not mean concurrence. The Court held that the minutes recorded only consent in principle to consult members, who in fact rejected the proposal at a Special General Meeting on 16th January 2019; that the Respondent ignored the Petitioner's written petitions; and that under Section 10(5) of the Employment Act and Article 41(1) of the Constitution, unilateral detrimental alteration of employment terms without consultation is an unfair labour practice. Meaningful consultation requires demonstrable consideration of views. Finding a prima facie case and irreparable harm, the Court suspended the new Academic Policy pending further orders and awarded costs of the application to the Petitioner.

Key legal issues

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01

Whether alteration of terms of employment without consultation is lawful

Holding

Section 10(5) of the Employment Act outlaws alteration of terms of employment without consultation; unilateral and detrimental alteration is an unfair labour practice

Reasoning

The Court accepted that the University Council had statutory mandate over terms of service, but held that even a body with such mandate cannot lawfully alter terms of employment to the detriment of employees without consultation. Section 10(5) of the Employment Act and Article 41(1) of the Constitution, as applied in James Ang'awa Atanda v Judicial Service Commission, prohibit unilateral variation. The policy altered the workload and removed income from the 4th unit without consultation.

p. 4
02

Whether the Petitioner was consulted and whether consultation was meaningful

Holding

Although the Petitioner's officials attended a consultative meeting and gave consent in principle to discuss cost-cutting proposals with members, there was no specific consent to the increase in teaching units, and the Respondent ignored the Petitioner's written views

Reasoning

The minutes of 21st September 2018 showed only consent in principle to take proposals to members, who in fact rejected them at a Special General Meeting on 16th January 2019. Written petitions of 16th January 2019 and 19th June 2019 went unanswered. Consultation does not mean concurrence, but the input of the consulted must be taken into account; here the Respondent ignored the Petitioner's views at every turn.

p. 5
03

Whether a prima facie case and irreparable harm were established for conservatory orders

Holding

The Petitioner established a prima facie case and members would suffer irreparable harm if the policy were implemented

Reasoning

Having found the policy was implemented without consultation and amounted to unilateral detrimental variation of terms of employment, the Court found arguable issues established. On irreparable harm, the Court took judicial notice that employees plan their economic and social lives on regular income, including part-time payments for the 4th unit, whose removal without consultation could occasion financial ruin.

p. 5

Legal principles established

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  • Unilateral variation of terms of employment without consultation is an unfair labour practice under Article 41(1) of the Constitution
  • Meaningful consultation requires demonstrable consideration of the views gathered, not mere opportunity to be heard

Court orders

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  1. 1.The Respondent's new Academic Policy requiring the Petitioner's members to teach 4 units instead of 3 units per semester is suspended pending further orders of the Court
  2. 2.The Respondent to meet the costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 232(d)
  • Constitution of Kenya, 2010Article 41(1)
  • Employment ActSection 10(5)
  • Technical University of Mombasa StatutesStatute XXX1(1); Statute XXX(6)
  • Technical University of Mombasa CharterClause 19
  • 2010-2013 Collective Bargaining AgreementClause 5.0
  • University Terms of Service for Academic StaffClause 1.0; Clause 5.2(i)

Cases cited (4)

  • James Ang'awa Atanda & 10 others v Judicial Service Commission
    [2017] eKLR
  • Universities Academic Staff Union (UASU) v Salaries and Remuneration Commission & another
    [2019] eKLR
  • Amos Kiumo & 19 others v Cabinet Secretary, Ministry of Interior & Coordination of National Government & 8 others
    [2014] eKLR
  • Kevin K. Mwiti & others v Kenya School of Law & others
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour disputes; constitutional values under Article 41(1) and Article 232(d) of the Constitution of Kenya, 2010 (provisions invoked in submissions)

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, "Universities Academic Staff Union (UASU) Tum Chapter v Technical University of Mombasa [2019] KEELRC 683 (KLR)", Case Analysis (2019). Petition No 6 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/683/eng@2019-10-09

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