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ELRCDismissedCause No. 309 of 2019· [2020] KEELRC 1466 (KLR)

Transport Workers Union v Super Metro Limited [2020] KEELRC 1466 (KLR)

Employment and Labour Relations Court of Kenya
6 March 2020
MOMaureen Onyango
1,833 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, a trade union registered under the Labour Relations Act to represent workers in the transport and allied sectors, sued Super Metro Limited, a company managing public service vehicles on behalf of vehicle owners. The union claimed to have recruited 205 of 300 unionisable employees and forwarded check-off forms seeking deduction and remittance of union dues under Sections 48 and 50 of the Labour Relations Act, and sought an order compelling the respondent to sign a recognition agreement under Section 54. It also alleged intimidation of employees and unfair terminations of five drivers and conductors. The respondent, through the affidavit of its director Nelson Mwangi Nduki, denied employing the drivers and conductors, stating it employs only 29 staff, owns no PSV vehicles, and merely provides management services to investors, including collecting Kshs.50 per vehicle daily to remit NSSF and NHIF contributions on the investors' behalf. The court referred the matter to the Ministry of Labour, whose report by Grace Weresa recommended that the respondent is not the employer of the drivers and conductors. Adopting the report, the court held that there is no contract of service, oral, written or implied, between the respondent and the drivers and conductors, that the respondent does not pay their wages, and that remittance of statutory dues and badges alone do not establish employment. The claim and application were dismissed with each party bearing its own costs.

Key legal issues

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01

Existence of an employer-employee relationship between the PSV management company and drivers/conductors

Holding

No employment relationship exists; the respondent merely manages vehicles on behalf of investor owners

Reasoning

The court adopted the Ministry of Labour report, which applied the Employment Act definitions of employee and employer. The respondent has no written, oral or implied contract of service with the drivers or conductors, does not pay their wages or salaries, and only collects Kshs.50 per vehicle per day to remit NSSF and NHIF contributions on behalf of the investors. None of its 29 direct employees was recruited by the union.

p. 4
02

Whether the respondent can be compelled to deduct and remit union dues and sign a recognition agreement

Holding

The claim fails because the statutory machinery under Sections 48, 50 and 54 of the Labour Relations Act operates only against an employer

Reasoning

Since the respondent is not the employer of the drivers and conductors, it has no statutory obligation to effect check-off deductions or to execute a recognition agreement. The union recruited none of the respondent's own 29 employees, and the workers belong to the vehicle owners who contract with the respondent.

p. 4

Legal principles established

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  • Remittance of statutory dues and issuance of identification badges, without more, do not establish an employer-employee relationship
  • A party that does not enter into a contract of service and does not pay wages is not the employer of the workers concerned

Court orders

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  1. 1.The claim and application are dismissed for lack of merit
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Labour Relations ActSections 45, 48, 50, 54
  • Employment Act, 2007Definitions of employee and employer
  • NTSA (Operations of Public Service Vehicles) Regulations, 2014Sections 5.1 and 9
  • NSSF Actnull
  • Constitution of KenyaArticle 41
Jurisdiction invoked
Jurisdiction under the Labour Relations Act and the Employment and Labour Relations Court's mandate over trade union disputes (Section 48, 50 and 54 of the Labour Relations Act, 2007); the court referred the dispute to the Ministry of Labour for a report before determination

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Transport Workers Union v Super Metro Limited [2020] KEELRC 1466 (KLR)", Case Analysis (2020). Cause No. 309 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1466/eng@2020-03-06

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