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ELRCPartially AllowedCause No. 160 of 2019 (Originally Mombasa Cause No. 485 of 2018)· [2020] KEELRC 153 (KLR)

Amalgamated Union of Kenya Metal Workers v Associated Motors Limited (Cause 160 of 2019) (Employment and Labour) [2020] KEELRC 153 (KLR)

Employment and Labour Relations Court
25 November 2020
1,323 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan employer lost its bid to delay paying union arrears because courts cannot stay a refusal, and employers must prove hardship with evidence.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Radido Stephen J) determined two interlocutory motions arising from a judgment of 24 April 2020 in a union dispute over arrears under a 2016-2018 collective bargaining agreement. The Respondent, Associated Motors Limited, sought a stay of implementation and/or execution of the ruling of 7 August 2020 (which had dismissed its application for review and affirmed the judgment) pending an intended appeal, citing the COVID-19 pandemic's impact on its business, a tripartite Memorandum of Understanding of 20 April 2020 suspending implementation of CBAs, and an arguable appeal. The Union opposed, arguing no Notice of Appeal had been filed against the 7 August 2020 ruling, that the Court was functus officio, and that no dialogue had been invited. The Court declined the stay: the Respondent was seeking orders already refused on identical grounds; the orders of 7 August 2020 were a negative order incapable of stay; and no evidence of good-faith approaches to dialogue was exhibited. The Union's motion sought adoption of its computations of arrears and enforcement of section 26 of the Employment Act and ILO Convention No. 100. The Court held the primary obligation to compute and pay arrears lay with the employer, found the COVID-19 explanation an afterthought unsupported by evidence, and held the Respondent had made no bona fide attempt to tender its own computations. The Court ordered joint computations within 15 days, filing within 21 days, and that in default the Union's computations be deemed correct and adopted for execution, with costs of the Union's motion to the Respondent.

Key legal issues

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01

Whether stay of execution pending appeal could issue in respect of the Ruling of 7 August 2020

Holding

Stay was declined because the application repeated grounds already rejected on 7 August 2020, and the orders then made were a negative order incapable of stay

Reasoning

The Court found the Respondent was attempting to obtain orders already refused on 7 August 2020 and relied on identical grounds (COVID-19 effects on business). Additionally, the ruling of 7 August 2020 was a negative order which does not lend itself to stay pending appeal, unlike a judgment granting positive relief. The Respondent also failed to exhibit any evidence, such as letters or emails, showing it had approached the Union for social dialogue in good faith.

p. 2
02

Whether the Union's computations of arrears should be adopted and the judgment of 24 April 2020 enforced

Holding

The Court directed joint computations within set timelines, with the Union's computations to be deemed correct in default, because the employer had failed in its primary obligation to compute arrears and showed no bona fides

Reasoning

The judgment of 24 April 2020 gave the Respondent 60 days to pay arrears but it made no payments and did not compute the arrears until the Union's application. The Respondent's COVID-19 explanation was unsupported by any documentary evidence and was found to be an afterthought. It merely poked holes in the Union's computations without placing its own before the Court, and the Court accepted the Union's argument that the Respondent was on a mission to keep litigation alive, contrary to the ethos of expeditious and proportionate determination of employment disputes.

p. 3

Legal principles established

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  • A negative order (refusal to grant orders) is not capable of stay of execution pending appeal
  • The primary obligation to compute and pay arrears ordered by the Court rests on the employer, not the union or employees
  • A party who files computations only when opposing the other side's application, and merely pokes holes in the other side's figures without tendering its own, forfeits the benefit of the doubt

Court orders

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  1. 1.The Respondent's Motion for stay of implementation and/or execution of the Ruling of 7 August 2020 is declined
  2. 2.The Respondent to sit with the Union and agree on joint computations of arrears within 15 days
  3. 3.The joint computations to be filed in Court within 21 days
  4. 4.In default, the computations by the Union to be deemed the correct computations and adopted for purposes of execution
  5. 5.Respondent to bear costs of the Union's motion

Authorities

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Legislation

  • Employment Actsection 26
  • Employment and Labour Relations Court (Procedure) Rules
Jurisdiction invoked
Employment and Labour Relations Court Act and the Employment and Labour Relations Court (Procedure) Rules, 2016

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, "Amalgamated Union of Kenya Metal Workers v Associated Motors Limited (Cause 160 of 2019)  (Employment and Labour) [2020] KEELRC 153 (KLR)", Case Analysis (2020). Cause No. 160 of 2019 (Originally Mombasa Cause No. 485 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/153/eng@2020-11-25

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