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ELRCPartially AllowedELRC Cause (Nairobi), Statement of Claim dated 23rd July 2018· [2020] KEELRC 1419 (KLR)

Kenya Tertiary and Schools Workers’ Union (KETASWU) v Heltz Institute of Advanced Driving [2020] KEELRC 1419 (KLR)

Employment and Labour Relations Court
6 March 2020
MOMaureen Onyango
3,241 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed the union had majority support and that employer-driven resignations were coerced, but refused recognition because the agreement named the wrong entity.

What this practically means

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Executive summary

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The claimant union sued the respondent employer seeking declarations that the respondent refrain from harassing and intimidating union members, effect and remit check-off dues, pay accrued dues, harmonise salaries to statutory minimums, and sign a recognition agreement. Alongside the statement of claim the union filed a notice of motion, of which prayer 2 was granted ex parte on 25th July 2018. The respondent filed a replying affidavit sworn by its Director Ahmed Bachan and a preliminary objection contending the suit was premature, defective and offended Sections 73 and 74 of the Labour Relations Act for failure to exhaust alternative dispute resolution. The court directed that the motion, claim and preliminary objection be heard together by written submissions. Applying Mukisa Biscuit, the court held the preliminary objection raised factual, not purely legal, matters and was in any event abandoned. On the merits the court found the claimant was the proper union, that no rival union existed despite the respondent's reliance on a suit by the Transport Workers Union, and that the claimant had recruited a simple majority (42 employees). The court found the resignation letters produced by the respondent were manufactured and coerced, violating Articles 36 and 41 of the Constitution. However, the recognition prayer failed because the recognition agreement served named Heltz Driving School Academy, a different entity from the respondent, Heltz Institute of Advanced Driving. Judgment was delivered on 6th March 2020 with no orders as to costs.

Key legal issues

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01

Whether the notice of preliminary objection was a pure point of law

Holding

The preliminary objection failed; it raised factual/procedural matters and was in any event abandoned

Reasoning

Applying Mukisa Biscuit, a preliminary objection must be a pure point of law argued on assumed facts. The respondent's grounds required ascertainment of facts and the respondent made no submissions in support in final submissions, so the objection was taken as abandoned.

p. 4
02

Whether the claimant was the appropriate union and had recruited a simple majority

Holding

Yes; the claimant is the proper union and had recruited a simple majority, there being no rival union

Reasoning

The respondent did not contest the claimant's suitability or that 42 recruits constituted a simple majority, and the documents on the alleged rival Transport Workers Union showed no recognition agreement or recruitment. The court presumed the claimant was the proper union.

p. 4
03

Whether the employees' resignations defeated the claim

Holding

The resignations were manufactured and coerced, violating Articles 36 and 41 of the Constitution

Reasoning

The resignation letters were typed with blanks for name, signature and date, signed after suit was filed, and the respondent did not explain non-deduction of dues before the resignations. The court found coercion violating freedom of association.

p. 4
04

Whether the respondent should be compelled to sign a recognition agreement

Holding

No, because the recognition agreement served named Heltz Driving School Academy, not the respondent

Reasoning

All correspondence and the suit concern Heltz Institute of Advanced Driving, but the recognition agreement submitted named a different entity. The respondent was therefore never properly served with a recognition agreement to sign, and the recognition prayer fails on this ground alone.

p. 5

Legal principles established

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  • The right to recognition of a trade union is reckoned as at the date the union submits a recognition agreement for signature, not the date of the dispute or judgment
  • Employees cannot resign from union membership unless they first joined it; service of check-off forms may be inferred from resignations
  • A recognition agreement naming the wrong entity cannot ground an order for recognition against the correct employer

Court orders

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  1. 1.Preliminary objection struck out as abandoned/not qualifying as a preliminary objection
  2. 2.Finding that the claimant is the proper union for the respondent's employees
  3. 3.Finding that there is no rival union
  4. 4.Finding that the claimant recruited a simple majority of the respondent's employees
  5. 5.Finding that the resignations were not voluntary and were coerced, violating Articles 36 and 41 of the Constitution
  6. 6.Prayer for recognition agreement refused on the ground that the recognition agreement served named a different entity (Heltz Driving School Academy)

Authorities

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Legislation

  • Labour Relations ActSections 48, 54(1), 54(2) and (3), 5(2), 62(1), 4(1), 73, 74
  • Labour Institutions ActSections 48(1) and (2)
  • Regulation of Wages (General) OrdersMinimum terms
  • Constitution of Kenya, 2010Articles 20, 21, 36, 41
  • ILO Convention No. 87 on Freedom of Association and Protection of the Right to OrganiseArticle 2

Cases cited (5)

  • Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited
    (1969) EA
  • Kenya Union of Domestic, Hotels Educational Institutions, Hotels and Allied Workers v Commission for Higher Education
    Cause 149 of 2010
  • Scientific Research International Technical and Allied Workers Union v Kenya Agricultural Research Institute and Another
    (2013) eKLR
  • Aviation and Allied Workers Union v Air Kenya Express Limited and Another
  • Cause No. 1150 of 2012 (decision relied on by claimant, parties not disclosed)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Articles 36 and 41 of the Constitution of Kenya 2010 and the Labour Relations Act; dispute reported to the Minister under Section 62(1) of the Labour Relations Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Tertiary and Schools Workers’ Union (KETASWU) v Heltz Institute of Advanced Driving [2020] KEELRC 1419 (KLR)", Case Analysis (2020). ELRC Cause (Nairobi), Statement of Claim dated 23rd July 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1419/eng@2020-03-06

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