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ELRCDismissedNot stated in judgment· [2012] KEELRC 176 (KLR)

KENYA HOTELS AND ALLIED WORKERS UNION V RATNA TSAVO LODGES [2012] KEELRC 176 (KLR)

Industrial Court of Kenya
14 December 2012
MOMaureen Onyango
1,218 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court dismissed a union's entire claim because it rushed to court before finishing mandatory conciliation and bundled separate disputes into one case.

What this practically means

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Executive summary

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The Kenya Hotels and Allied Workers Union filed a notice of motion and memorandum of claim against a hotel employer seeking orders compelling deduction and remittance of union dues under section 48 of the Labour Relations Act, 2007, non-victimization of union members, access to members at the workplace, reinstatement of laid-off employees, and execution of a recognition agreement. KUDHEIHA Workers was joined as an interested party without objection, and contended that the employees were covered by a collective agreement it had signed with the Kenya Association of Hotel Keepers and Caterers. The Respondent objected that the dispute was before the Court prematurely, as the Minister for Labour had appointed the District Labour Officer, Voi as conciliator and conciliation had not concluded; a meeting had been called but postponed by the Claimant. The Court, per Onyango J, found a misjoinder of issues, holding that the four distinct issues (union dues, access, victimization/unfair termination, and recognition) should have been reported as separate disputes. Relying on section 15 of the Industrial Court Act, 2011, the Court held that the dispute had been referred prematurely and unprocedurally before conciliation was exhausted. The claim was dismissed in its entirety, the parties directed to continue with the pending conciliation before the District Labour Officer, Voi, and the Claimant advised to report the other disputes under the Labour Relations Act. Each party was ordered to bear its own costs.

Key legal issues

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01

Prematurity of reference to the Industrial Court before exhaustion of conciliation

Holding

The dispute was referred prematurely and unprocedurally before the District Labour Officer, Voi concluded conciliation, and was dismissed on that account

Reasoning

The Minister for Labour had appointed the District Labour Officer, Voi as conciliator on the recognition agreement dispute, and a meeting had been called but postponed by the Claimant. Section 15 of the Industrial Court Act 2011 empowers the Court to refuse to determine a dispute where conciliation has not been attempted, and to refer it back. The Claimant's own conduct during proceedings, seeking to file supplementary submissions on unfairly terminated grievants, confirmed the prematurity. The claim was therefore dismissed and parties directed back to conciliation.

p. 3
02

Misjoinder of issues in a single dispute

Holding

The Claimant improperly combined four distinct issues (union dues, access to members, victimization/unfair termination, and recognition) in one dispute

Reasoning

The Court found that all the issues raised in the notice of motion and memorandum of claim were issues that should have been the subject of different disputes. All four issues fell under section 62 of the Labour Relations Act, which governs reporting of trade disputes. Bundling distinct issues into one claim under a certificate of urgency was improper, and each issue should have been separately reported in accordance with the Act.

p. 3

Legal principles established

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  • The Industrial Court may refuse to determine a dispute unless satisfied that an attempt has been made to settle it through conciliation, and may refer a dispute to conciliation where it becomes apparent that it ought to have been so referred (section 15, Industrial Court Act 2011)

Court orders

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  1. 1.The dispute is dismissed for lack of merit
  2. 2.The parties are directed to continue with the conciliation proceedings pending before the District Labour Officer, Voi
  3. 3.The Claimant is advised to report the other disputes in accordance with the Labour Relations Act, 2007
  4. 4.Each party shall bear its own costs

Authorities

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Legislation

  • Labour Relations Actsection 48
  • Labour Relations Actsection 62
  • Labour Relations Act2007 (generally)
  • Industrial Court Actsection 15
  • Industrial Court Act2011 (generally)
Jurisdiction invoked
Industrial Court Act, 2011, section 15; Labour Relations Act, 2007, section 62

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 HOTELS AND ALLIED WORKERS UNION V RATNA TSAVO LODGES [2012] KEELRC 176 (KLR)", Case Analysis (2012). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/176/eng@2012-12-14

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