Fidelis Omwamba Onsongo & 1648 others v Tailors & Textile Workers Union & another [2021] KEELRC 1930 (KLR)
The bottom line
#Kenyan employees who resign from a union can stop paying union dues, but must still pay agency fees while covered by a collective bargaining agreement.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case
The Applicants established a prima facie case because their constitutional and statutory right to join or leave a trade union would be infringed by continued deduction of union dues after resignation
The court found no collusion proved, and noted the deductions flowed from a court order in Cause 678 of 2018. Nonetheless, Article 41(2)(c) of the Constitution and section 4(1) of the Labour Relations Act protect the right to join or leave a union, so forcing deduction of union dues after resignation would infringe that right, giving the Applicants a prima facie case with probability of success.
Irreparable harm
The Applicants failed to prove irreparable harm because the loss is quantifiable in money and capable of refund
Applying the definition in Paul Gitonga Wanjau v Gathuthi Tea Factory, the court held that loss of union dues or agency fees is a monetary injury. The 1st Respondent could refund deducted dues if the deduction were later found unlawful, so damages would be an adequate remedy and the second Giella limb failed.
Balance of convenience and agency fees
The balance of convenience tilts against the Applicants; resigned employees covered by a CBA are automatically liable to agency fees under section 49(5) of the Labour Relations Act
Granting the injunction would defeat earlier orders in ELRC Cause 678 of 2018. A recognition agreement and CBA exist and the Applicants benefit from them, so despite resignation they must pay agency fees equivalent to union dues, and the 2nd Respondent must comply with the statute and the earlier orders pending trial.
Alleged collusion
The Applicants did not prove collusion between the Respondents to deduct union dues unlawfully
The evidence showed a recognition agreement and concluded CBA between the Respondents, and that deductions were pursuant to a court order rather than voluntary action by the employer. The allegation of collusion was therefore not proved on the material presented.
Legal principles established
#- An employee cannot be forced to remain in a trade union or continue paying union dues after withdrawing membership, but upon resignation while covered by a CBA they are immediately liable to agency fees under section 49(5) of the Labour Relations Act
- The principles for interlocutory injunctions in Giella v Cassman Brown are cumulative; failure on irreparable harm need not lead to consideration of balance of convenience
Court orders
#- 1.The Notice of Motion dated 12.10.2020 is dismissed
- 2.The 2nd Respondent is bound to comply with section 49(5) of the Labour Relations Act and the court orders in ELRC Cause 678 of 2018 to deduct agency fee equal to union dues pending the hearing and determination of the suit
- 3.Costs of the application awarded to the Respondents
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution and the Employment and Labour Relations Court Act (employment and labour relations dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fidelis Omwamba Onsongo & 1648 others v Tailors & Textile Workers Union & another [2021] KEELRC 1930 (KLR)", Case Analysis (2021). ELRC Cause (Nairobi) – Notice of Motion dated 12.10.2020 (related to ELRC Cause No. 678 of 2018, Tailors and Textiles Workers Union v Global Apparels (EPZ) Limited). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1930/eng@2021-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.