Universities Academic Staff Union (UASU) Tum Chapter v Technical University of Mombasa [2019] KEELRC 683 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether alteration of terms of employment without consultation is lawful
Section 10(5) of the Employment Act outlaws alteration of terms of employment without consultation; unilateral and detrimental alteration is an unfair labour practice
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.
Whether the Petitioner was consulted and whether consultation was meaningful
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
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.
Whether a prima facie case and irreparable harm were established for conservatory orders
The Petitioner established a prima facie case and members would suffer irreparable harm if the policy were implemented
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.
Legal principles established
#- 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
#- 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.The Respondent to meet the costs of the application
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.