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ELRCDismissedCause No. 396 of 2017· [2020] KEELRC 1819 (KLR)

Kenya Union of Printing, Publishing, Paper Manufacturers & Allied Workers v MFI Documents [2020] KEELRC 1819 (KLR)

Employment and Labour Relations Court
28 January 2020
JRJames Rika
987 words in judgment
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The bottom line

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Kenya's Employment Court refused to recognise a bakers' union because it had no clear proof it represented most employees and the conciliation process was flawed.

What this practically means

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Executive summary

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The Claimant Union, having earlier failed in Cause No. 677 of 2015 for failing to refer its dispute to the Cabinet Secretary for Labour, reported the dispute afresh for conciliation. Two Conciliators, Hellen Apiyo and G.A. Omondi, were appointed over the same dispute and produced two separate reports. Omondi recommended recognition, compensation for seven terminated employees and withdrawal of a strike notice; Apiyo addressed union dues and compensation for three employees but said nothing on recognition. The Claimant then filed Cause No. 396 of 2017 seeking implementation of Omondi's recommendations, an injunction against unfair termination, and costs. The Respondent filed a Statement of Response and Cross-Petition, which the Court found needless since rule 7(3) of the ELRC (Procedure) Rules 2016 permits enforcement of constitutional rights in a Statement of Claim; rather than strike it out, the Court deemed it superfluous. On the merits, the Court held that Section 65 of the Labour Relations Act contemplates one Conciliator, not two, and that the dual conciliation processes did not conform with the Act. It further held that the Claimant bore the burden of clearly establishing recruitment of a simple majority of the Respondent's unionisable employees for recognition under Section 54, and the evidence fell short; the Claimant was to recruit afresh. The Claim was declined, the Cross-Petition deemed superfluous, and no order was made on costs. Judgment was delivered at Mombasa on 28th January 2020 by James Rika, Judge.

Key legal issues

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01

Regularity of the conciliation process

Holding

Conciliation did not conform with the Labour Relations Act; the appointment of two Conciliators over the same dispute generated confusion and two conflicting reports

Reasoning

Section 65 requires appointment of a single Conciliator within 21 days. Hellen Apiyo was first appointed, with no indication why she was succeeded by G.A. Omondi. Omondi reported earlier than Apiyo despite being engaged later, and Omondi recommended recognition without explaining why Apiyo, who analysed the numbers, did not. The dual processes clouded the issues in dispute and vitiated the conciliation.

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02

Entitlement to recognition under Section 54

Holding

Recognition declined; the Claimant failed to prove recruitment of a simple majority of the Respondent's unionisable employees and must recruit afresh

Reasoning

The main dispute was recognition. Apiyo, who analysed the numbers, made no recommendation on recognition, while Omondi recommended it without stating why Apiyo did not. The Court held it cannot grant recognition absent clear evidence of a simple majority, and found the evidence insufficient.

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03

Respondent's Cross-Petition

Holding

The Cross-Petition was needless and deemed superfluous; rule 7(3) permits enforcement of constitutional rights within the primary suit

Reasoning

There was no Petition to prompt a Cross-Petition; cross-pleading in a Statement of Claim would ordinarily yield a Counter-Claim. Rule 7(3) of the ELRC (Procedure) Rules 2016 already allows a party to seek enforcement of constitutional rights and freedoms in a Statement of Claim. The Court declined to strike it out as no useful purpose would be served.

p. 2

Legal principles established

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  • Section 65 of the Labour Relations Act requires the Minister to appoint a Conciliator, not conciliators, within 21 days of a trade dispute being reported
  • A party need not file a Cross-Petition to enforce constitutional rights in employment proceedings, as rule 7(3) of the ELRC (Procedure) Rules 2016 allows this in a Statement of Claim
  • Recognition under Section 54 of the Labour Relations Act requires clear evidence that a union has recruited a simple majority of the employer's unionisable employees

Court orders

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  1. 1.The Claim is declined
  2. 2.The Cross-Petition shall be deemed superfluous
  3. 3.No order on the costs

Authorities

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Legislation

  • Labour Relations ActSections 54(6), 54(7), 62, 74(a)
  • Labour Relations ActSections 54, 65, 66, 67
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 7(3)
Jurisdiction invoked
Labour Relations Act, Sections 54, 54(6), 54(7), 62, 74(a), 65, 66 and 67; ELRC (Procedure) Rules 2016, rule 7(3)

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 Printing, Publishing, Paper Manufacturers & Allied Workers v MFI Documents [2020] KEELRC 1819 (KLR)", Case Analysis (2020). Cause No. 396 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1819/eng@2020-01-28

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