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ELRCOtherELRC Cause at Mombasa (claim filed November 15, 2021; application dated January 26, 2023)· [2023] KEELRC 1506 (KLR)

Kenya Ports Authority v Dock Workers Union (Cause E099 of 2021) [2023] KEELRC 1506 (KLR)

Employment and Labour Relations Court
15 June 2023
MMM. Mbarũ
1,713 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Dock Workers Union, the respondent, filed an application dated January 26, 2023 seeking orders that, pending conclusion of the conciliation previously ordered by the court, the parties maintain the status quo in respect of acting positions. The dispute arose from the claimant, Kenya Ports Authority, refusing to confirm employees who had acted in higher positions beyond the six months contemplated in the Human Resource Manual, 2017, which prompted a strike notice dated November 10, 2021. The court had on December 3, 2021 restrained industrial action and directed parties to statutory conciliation, and on February 10, 2022 and March 15, 2022 issued status quo and anti-demotion orders. The union, through its General Secretary Simon Kiprono Sang, complained that the claimant had implemented a new grading structure and advertised positions without disclosing this to the court, allegedly in disregard of the subsisting orders. The claimant, through Bildad Kisero, opposed the application as speculative, stating that the advertised positions were senior management posts filled competitively in line with Article 232 of the Constitution, and that it had submitted representations to the conciliator. The court found the conciliation report still outstanding - the conciliator had not forwarded it partly at the union's own request - and held that parties were stuck until the report was filed. Declining the orders as couched, the court directed the parties to attend before the conciliator within 14 days, ordered the report filed within 30 days, scheduled mention dates, and preserved the orders of February 10 and March 15, 2022. No costs order was made.

Key legal issues

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01

Whether to preserve the status quo on acting and advertised positions pending the conciliator's report

Holding

The court declined to issue the orders as couched, but preserved existing orders of February 10 and March 15, 2022 and directed completion of conciliation within fixed timelines

Reasoning

The court observed that the conciliation report is central to resolving the dispute and that until it is filed in the positive or negative, parties remain stuck. The notices of March 1, 2022 and February 27, 2023 did not resolve the suit, and similar applications would continue unless the court regulated conciliation timelines. The court therefore substituted the substantive relief with case-management directions and kept prior protective orders alive.

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02

Whether the claimant's internal advertisements related to the protected acting positions

Holding

The court noted that the March 1, 2022 notice related to three senior management positions (HM1/HM2 grades) whereas the February 27, 2023 notice related to positions in grades KPA4 to KPA10, but held this did not resolve the suit

Reasoning

The court compared the two advertisements and found they related to different positions and grades, yet declined to determine the underlying dispute since the core issues remain pending before the conciliator and the court. The respondent's apprehension was treated as an ongoing incident of the unresolved dispute.

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Legal principles established

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  • Where statutory conciliation is pending and the conciliator's report has not been filed, parties are effectively stuck and the court may intervene to regulate conciliation timelines in the interest of concluding the dispute.
  • Interim protective orders previously issued remain in force pending conclusion of conciliation and determination of the suit.

Court orders

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  1. 1.Orders sought by the respondent as couched shall not issue; instead the court to have the due conciliation proceedings report within the next 30 days
  2. 2.Parties to attend before the conciliator within the next 14 days and upon which the report due shall be concluded and filed with the court
  3. 3.Attendance before the conciliator shall be in good faith and with full cooperation of the parties
  4. 4.Parties to attend court after 14 and 30 days respectively to report progress
  5. 5.Mention on July 3, 2023 and July 24, 2023 if the filing of the report is not achieved earlier
  6. 6.Orders of February 10 and March 15, 2022 shall remain in force

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 232 (values and principles of public service)
Jurisdiction invoked
Article 162(2) of the Constitution (employment and labour relations court jurisdiction), read with statutory conciliation procedures under labour relations law (statutory conciliation procedures referenced but no express provision cited)

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 Ports Authority v Dock Workers Union (Cause E099 of 2021) [2023] KEELRC 1506 (KLR)", Case Analysis (2023). ELRC Cause at Mombasa (claim filed November 15, 2021; application dated January 26, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1506/eng@2023-06-15

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