Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the judgment text· [2019] KEELRC 776 (KLR)

Kenya National Private Security Workers’ Union v Hatari Security Limited [2019] KEELRC 776 (KLR)

Employment and Labour Relations Court
16 September 2019
HWHellen Wasilwa
1,375 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan employer was ordered to deduct union dues and stop harassing union members, because employees' right to join a union doesn't depend on any recognition agreement.

What this practically means

#

Executive summary

#
This was a ruling on the Claimant union's application dated 11th April 2019 in a cause referred to the Employment and Labour Relations Court by the Ministry of Labour after the Respondent failed to attend conciliation. The union alleged that after it forwarded signed check-off forms for 249 of the Respondent's employees, the Respondent refused to deduct and remit union dues, denied the union access to workers, and victimized, harassed and dismissed employees for joining the union; it also alleged non-compliance with minimum wage orders, non-issuance of employment letters, and non-remittance of NSSF and NHIF. The Respondent opposed, contending that no recognition agreement existed (citing a previously withdrawn cause between the parties), that some listed persons were not its employees, and that it had no instructions to deduct dues. The Court held that under Article 41 of the Constitution every employee may join a union of choice and union membership is not pegged on a recognition agreement. It found the union had served check-off forms authorizing deductions which the Respondent should effect, and directed that any harassment or victimization of union members must cease. However, claims on minimum wages, overtime, house allowance, and NSSF/NHIF remittances were deferred to the main cause as requiring evidence. Costs were awarded in the cause.

Key legal issues

#
01

Locus standi of a union without a recognition agreement

Holding

Union membership does not depend on a recognition agreement; employees have a constitutional right to join a union of their choice under Article 41

Reasoning

The Respondent argued the Claimant was non-suited for lack of a recognition agreement, noting a prior withdrawn cause. The Court held that Article 41 grants every employee the right to form or join a union of their choice, and such membership is not pegged on a recognition agreement. Having served check-off forms, the Claimant established entitlement to have deductions effected.

p. 2
02

Deduction and remittance of union dues

Holding

The Respondent should effect deductions authorised by the check-off forms served on it

Reasoning

Section 48(2) and (3) of the Labour Relations Act provides a mechanism for deduction of union dues upon service of Form S notices signed by employees. The Court found the Applicant demonstrated it served check-off forms authorising deductions, which the Respondent should effect.

p. 3
03

Victimization and harassment of union members

Holding

Victimization of union members is not permitted and, if ongoing, must cease

Reasoning

The Applicant alleged employees were being dismissed, harassed and intimidated for union membership, contrary to Section 5 of the Labour Relations Act, Articles 36 and 41 of the Constitution and ILO Convention No. 87. The Court held such conduct is not allowed and should cease henceforth.

p. 3

Legal principles established

#
  • Union membership is not dependent on a recognition agreement with the employer
  • An employer served with check-off forms signed by employees must effect union dues deductions

Court orders

#
  1. 1.The Respondent should cease any harassment or victimization of union members henceforth
  2. 2.The Respondent should effect the deductions authorised by the check-off forms served on it
  3. 3.Prayers on minimum wages, overtime, house allowance and NSSF/NHIF remittances deferred to the main cause
  4. 4.Costs in the cause

Authorities

#

Legislation

  • Labour Relations ActSection 5
  • Labour Relations ActSection 48(2) & (3)
  • Constitution of KenyaArticle 36
  • Constitution of KenyaArticle 41
  • Legal Notice 2 of 2018 (General Wages Order)null
  • Convention No. 87 Freedom of Association and Protection of the Right to Organize, 1948Article 1

Cases cited (5)

  • Kenya Union Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers vs. British Army Training Unit Kenya
    [2015] eKLR
  • Kenya National Union of Nurses vs. County Public Service Board Homabay
    [2018] eKLR
  • Kenya Union of Printing, Paper Manufacturers and Allied Workers vs. Packaging Industries Limited & Another
    [2014] eKLR
  • Communication Workers' Union vs. Safaricom Limited
    [2014] eKLR
  • Kenya Union of Employees of Voluntary and Charitable Organizations vs. Board of Governors & Maina Wanjigi Secondary School
    [2015] eKLR
Jurisdiction invoked
Matter referred to the Court by the Ministry of East African Community, Labour and Social Protection (Department of Labour) after failed conciliation

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya National Private Security Workers’ Union v Hatari Security Limited [2019] KEELRC 776 (KLR)", Case Analysis (2019). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/776/eng@2019-09-16

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