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ELRCDismissedNot stated in the judgment· [2019] KEELRC 2193 (KLR)

Kenya Union of Domestic, Hotels Educational Institutions, Hospitals and Allied Workers v Technical University of Kenya [2019] KEELRC 2193 (KLR)

Employment and Labour Relations Court
21 February 2019
NMNzioki wa Makau
943 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a union's unfair dismissal claim because the dispute was never properly referred through mandatory conciliation procedures.

What this practically means

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Executive summary

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The Claimant union sued the Respondent university (formerly Kenya Polytechnic, granted a Charter in 2009) on behalf of five Grievants dismissed after participating in an illegal strike in 2014-2016. The Grievants were issued show cause letters, interdicted, subjected to disciplinary hearings and dismissed; their appeals failed. The dispute was reported to the Minister of Labour on 30 January 2015, a conciliator was appointed, but the conciliation lapsed and no referral certificate was issued. The parties consented to determination on written pleadings and submissions under Rule 21 of the ELRC (Procedure) Rules 2016. The Claimant argued the Grievants were denied union representation contrary to the CBA, rendering the dismissals unfair and unlawful. The Respondent maintained the dismissals followed fair procedure, terminal dues were paid, and relied on Sotik Highlands Tea Estates Ltd v KPAWU (2017) to urge that reinstatement could not be ordered after three years had lapsed. The court held that there was no referral certificate under Section 73 of the Labour Relations Act read with Section 69(a) and Rule 5(1)(b) of the ELRC (Procedure) Rules 2016, rendering the dispute a non-starter. Further, the claim was not proved to the required standard, and one Grievant was deceased and could not have instructed the Claimant. The suit was dismissed with no order as to costs.

Key legal issues

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01

Failure to comply with the mandatory dispute referral mechanism

Holding

The suit was a non-starter for want of a referral certificate

Reasoning

The Grievants' appeals against dismissal were unsuccessful, precipitating the reporting of a trade dispute. A conciliator was appointed but the dispute was never concluded and referred. No referral certificate under Section 73 of the Labour Relations Act read with Section 69(a) and Rule 5(1)(b) of the ELRC (Procedure) Rules 2016 was produced, so the court lacked a properly referred dispute to determine.

p. 2
02

Proof of entitlement to remedies and capacity to sue on behalf of a deceased Grievant

Holding

The claim was not proved; a deceased Grievant could not have instructed the Claimant to file the suit

Reasoning

No evidence established the Claimant's entitlement to the remedies sought. The 2nd Grievant was deceased at the time of filing suit, so he could not have instructed the Claimant. The court thus found the suit fit only for dismissal, and, given the circumstances, made no order as to costs.

p. 2

Legal principles established

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  • A trade dispute must be supported by a referral certificate under Section 73 of the Labour Relations Act as read with Section 69(a) and Rule 5(1)(b) of the ELRC (Procedure) Rules 2016; absent that, the dispute is a non-starter before the court
  • A claim not proved to the required standard warrants dismissal

Court orders

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  1. 1.The suit is dismissed with no order as to costs

Authorities

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Legislation

  • Labour Relations ActSection 73
  • Employment and Labour Relations Court (Procedure) Rules 2016Section 69(a) as read with Rule 5(1)(b); Rule 21

Cases cited (1)

  • Sotik Highlands Tea Estates Limited v Kenya Plantation and Agricultural Workers Union
    [2017] eKLR
Jurisdiction invoked
Referral of a trade dispute to the Employment and Labour Relations Court under Section 73 of the Labour Relations Act as read with Section 69(a) and Rule 5(1)(b) of the Employment and Labour Relations Court (Procedure) Rules 2016 (found absent)

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 Union of Domestic, Hotels Educational Institutions, Hospitals and Allied Workers v Technical University of Kenya [2019] KEELRC 2193 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2193/eng@2019-02-21

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