Tailors & Textiles Workers Union v Ashton Apparels EPZ Limited & 2 others (Cause E119 of 2023) [2024] KEELRC 1197 (KLR)
The bottom line
#A Kenyan court closed a union dispute after the employer proved it had paid all union dues, and freed a company takeover from those obligations.
What this practically means
#Executive summary
#Key legal issues
#Whether respondents should be ordered to deduct and remit union dues under Sections 48 and 49 of the LRA
The respondents verified the union's member lists and remitted dues for the validated 4553 employees; dues payable by the two original respondents are complete
The respondents undertook to settle union dues, carried out validation exercises, made payments of Kshs. 1,885,163.87 for 4553 employees on 19 December 2023, and the parties signed a joint validation document. Additional claims of 1312 members relate to the 3rd respondent, a separate legal entity that is misplaced in these proceedings as no orders are sought against it.
Whether to restrain the respondents from laying off and terminating unionisable employees
Refused; the claimant offered no live cases of affected employees and allegations of victimisation on account of unionisation require a call of evidence
Following the consent order, the shop floor status quo changed; a third party acquired the respondents and declared 100% redundancy. Lay-offs are governed by Section 40 of the Employment Act, and victimisation claims under Section 35(4) require evidence which the affidavits do not provide.
Whether a security deposit of undeducted union dues should be ordered
The respondents fully complied with the consent order; the security deposit is released and the applications marked as spent
The consent order of 12 December 2023 required a Kshs. 5,000,000 escrow deposit and payment of dues for 3776 employees. Joint validation confirmed 4553 members, and on 19 December 2023 the respondents paid Kshs. 1,885,163.87. Full compliance discharged the need for the deposit.
Position of the 3rd respondent (Ashton Mombasa Apparel EPZ Limited)
The 3rd respondent is misplaced in these proceedings; claims against it should be separated and addressed with that entity
Ashton Mombasa Apparel EPZ Limited is a separate and distinct legal entity incorporated on 9 November 2023, which took over the businesses of the 1st and 2nd respondents and engaged employees on new fixed-term contracts. No particular orders are sought against it in these proceedings.
Legal principles established
#- An application for security for costs is discretionary and should not be used oppressively to stifle a genuine claim or shut out a good response
- The employer is the custodian of work records and any need for verification of employee records vests with the employer
- Termination of employment must be justified and in accordance with due process, and acquisition of a business by a third party cannot negate an employee's right to dispute the lawfulness or fairness of termination under Section 35(4) of the Employment Act
Court orders
#- 1.The applications dated 31st October and 29 November 2023 are hereby marked as spent
- 2.Security deposit is hereby released to the respondents
- 3.The claimant is to issue instructions to the Bank to liquidate the escrow account held in the names of the advocates for the two parties and to remit the said funds back to the Respondents within the next 14 days from the date hereof
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act, Section 3 of the Employment and Labour Relations Court Act, Order 26 Rules 1 and 2 of the Civil Procedure Rules and Rule 17 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tailors & Textiles Workers Union v Ashton Apparels EPZ Limited & 2 others (Cause E119 of 2023) [2024] KEELRC 1197 (KLR)", Case Analysis (2024). Employment and Labour Relations Cause (ruling on Notices of Motion dated 31 October 2023 and 29 November 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1197/eng@2024-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.