Banking Insurance and Finance Union v SMEP Microfinance Bank Limited (Cause 890 of 2019) [2024] KEELRC 2370 (KLR)
The bottom line
#A Kenyan court refused to recognise a trade union on stale numbers, ordering a Labour officer head count because employer-handled resignations that bypassed the union were irregular.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant union had attained a simple majority of unionisable employees under section 54 of the Labour Relations Act so as to be entitled to recognition
The court could not finally determine simple majority because the parties disputed the number of unionisable members (122 vs 78) and time had passed; a fresh head count by a Labour officer was ordered
The Respondent claimed 78 active members out of 170 unionisable employees, asserting the rest were managers, had withdrawn or exited employment. The Claimant maintained 122 out of 175 members, with withdrawals never served on the union as required by section 48(8). Noting the lapse of almost five years and changed circumstances, the court directed a head count to establish current unionisable numbers before making final orders on recognition and dues.
Validity of the purported member resignations and withdrawals
The withdrawals were irregular because the Respondent never served resignation notices on the union as required by section 48(8), and they appeared triggered by the Respondent's own letter to employees
The court noted the union was unaware of the resignations at filing and only saw them in the response filed in 2022. It observed the sudden withdrawals followed the Respondent's letter of 27th November 2019 asking employees to confirm deductions, and relied on the Transfleet decision condemning failure to forward resignation notices to the union.
Legal principles established
#- An employer shall recognise a trade union for collective bargaining if it represents a simple majority of unionisable employees
- An employer must forward a copy of any notice of union resignation he receives to the trade union, failing which purported withdrawals cannot defeat recognition
- Non-compliance with sections 48(6) and (8) of the Labour Relations Act renders employer-mediated withdrawals irregular
- Where membership numbers have become uncertain over time, the court may direct a Labour officer's head count before determining simple majority for recognition
Court orders
#- 1.That the Labour officer to conduct a head count of unionisable employees currently in the respondent's employment and submit a report to the Court within 60 days of this order to enable the court make final orders in respect of the dispute
- 2.That the matter be mentioned on 25th November, 2024 for further directions
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act over trade union recognition and union dues disputes under the Labour Relations Act, No. 14 of 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Banking Insurance and Finance Union v SMEP Microfinance Bank Limited (Cause 890 of 2019) [2024] KEELRC 2370 (KLR)", Case Analysis (2024). Cause No 890 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2370/eng@2024-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.