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ELRCPartially AllowedCause E040 of 2023· [2023] KEELRC 2229 (KLR)

Kenya Engineering Workers Union v Thorlite Kenya Limited (Cause E338 of 2023) [2023] KEELRC 2229 (KLR)

Employment and Labour Relations Court
27 September 2023
SRStella Rutto
2,684 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan employer must deduct and remit union dues within 30 days once workers sign check-off forms, even while a recognition dispute is still pending in court.

What this practically means

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Executive summary

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The claimant union moved the Employment and Labour Relations Court at Nairobi by notice of motion seeking orders restraining the respondent employer from victimizing employees for joining the union, reinstatement of suspended and terminated employees, and compulsion of the respondent to deduct and remit union dues under section 48 of the Labour Relations Act, 2007. The union recruited 17 of the respondent's employees and served a dues demand letter and Form S check-off forms; the respondent declined to recognize the union, contending the 17 members fell short of the simple majority of its 39 employees, and alleged union officials harassed and threatened its management. The union alleged the respondent's disciplinary action against three employees was victimization for union membership. The court held that recognition was not an issue for determination at the interlocutory stage and reserved it for the main suit. On dues, it found no evidence contradicting the employees' willingness to join the union, that articles 36 and 41 of the Constitution and sections 4(1) and 48(2) and (3) of the Labour Relations Act guarantee and operationalize freedom of association, and that section 48(3) is mandatory, so the employer had no election but to deduct and remit. On victimization, the conflicting affidavits required a full hearing with cross-examination, but the court confirmed its interim restraint orders. The application was allowed in part; costs were in the cause.

Key legal issues

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01

Deduction and remittance of union dues

Holding

The respondent is mandated to deduct and remit union dues for employees who signed Form S, regardless of the unresolved recognition dispute.

Reasoning

The respondent did not deny receiving the dues demand letter and Form S and gave no reason for non-compliance, arguing only that it needed time to consider the Recognition Agreement. Section 48(2) and (3) of the Labour Relations Act, which gives effect to articles 36 and 41 of the Constitution, is in mandatory terms; once employees acknowledge membership by signing check-off forms, deduction and remittance within 30 days is compulsory.

p. 4
02

Victimization of union members

Holding

A conclusory finding could not be made at this stage; interim protection against victimization confirmed.

Reasoning

The applicant alleged disciplinary action against Gideon Wesonga, David Mutinda and Alex Nungu was prompted by union membership; the respondent produced warning letters and show-cause notices asserting genuine misconduct. The court found the conflicting assertions required a full hearing with cross-examination but underscored that victimization for union membership violates articles 36 and 41 and will not be tolerated.

p. 5
03

Recognition Agreement threshold

Holding

Not determined at this juncture; reserved for the main suit.

Reasoning

Both parties extensively submitted on whether the applicant met the simple majority threshold for a Recognition Agreement, but the court held this was not an issue for the interlocutory application and deferred it. The dispute over whether the workforce is 24 or 39 employees and whether 17 members constitute a majority therefore remains open for trial.

p. 3

Legal principles established

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  • Once an employee is recruited to a union and signs a check-off form, the employer must commence deduction and remittance of union dues within 30 days of service of the check-off forms.
  • Section 48(3) of the Labour Relations Act is mandatory and an employer cannot elect whether or not to comply.
  • Victimization of an employee on account of union membership violates articles 36 and 41 of the Constitution.

Court orders

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  1. 1.The respondent to forthwith commence deductions and remittance to the applicant's gazetted bank account of dues from employees who have duly signed Form S and acknowledged union membership
  2. 2.Pending the hearing of the main suit, the court confirms its orders of April 27, 2023 restraining the respondent from victimizing any of its employees on account of their union membership or participation in union activities
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010article 41(2)(c)
  • Constitution of Kenya, 2010article 36(1)
  • Labour Relations Act, 2007section 4(1)
  • Labour Relations Act, 2007section 48(2) and (3)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
Jurisdiction invoked
Article 162(2) of the Constitution and the Employment and Labour Relations Court Act (application for interim orders in an employment cause)

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 Engineering Workers Union v Thorlite Kenya Limited (Cause E338 of 2023) [2023] KEELRC 2229 (KLR)", Case Analysis (2023). Cause E040 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2229/eng@2023-09-27

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