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ELRCOtherCause No. 261 of 2015· [2015] KEELRC 59 (KLR)

Agility Logistics Limited v Kenya Long Distance Track Drivers and Allied Workers Union [2015] KEELRC 59 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
17 December 2015
HWHellen Wasilwa
1,452 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The Employment Court refused to pick sides in a union recognition fight, instead ordering an independent fact-finder to verify actual union membership at the security firm.

What this practically means

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Executive summary

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The Industrial Court (Hellen Wasilwa, J) dealt with two competing Notices of Motion: one dated 6 March 2015 by the Claimant employer seeking orders restraining the Respondent union from engaging in or inciting an unprotected strike and declaring the strike called unlawful; and one dated 6 July 2015 by the Respondent union seeking to restrain the Claimant from harassing, dismissing, threatening or intimidating its members pending determination of a counter-claim. The Claimant alleged the union had fraudulently recruited members and faked check-off forms without attaining a simple majority; the union, through its Secretary General Nicholas Mbugua, asserted it had recruited 169 of 320 unionisable employees and that the employer had refused to sign a recognition agreement and was victimising members, citing dismissals and duty changes. The court found the issues were whether the Respondent called industrial unrest in breach of the 6 March 2015 order and whether the Claimant refused recognition and harassed union members. Observing that the material before it was the Claimant's word against the Respondent's, and noting that the parties had not adhered to a Conciliator's earlier recommendations to act in utmost good faith and review union membership with a view to a recognition agreement, the court directed compliance with those recommendations and referred the parties back to the Conciliator for a fact-finding mission on actual union membership, to report within 60 days. The parties were encouraged to keep negotiating. Each party was ordered to bear their own costs.

Key legal issues

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01

Whether the Respondent union called or instigated an unprotected strike in breach of the Court's ex parte order of 6 March 2015

Holding

Not determined on the affidavits; the court found the assertions mutually contradictory and required independent verification

Reasoning

The court noted that each side's account directly contradicted the other's, with the Claimant alleging forged check-off forms and the Respondent denying any strike call. Rather than resolve contested facts on paper, the court opted to refer the question of actual union membership to a conciliator for a fact-finding mission to be reported back to Court within 60 days.

p. 3
02

Whether the Claimant refused recognition of the Respondent union despite a simple majority and was victimising union members

Holding

Not conclusively determined; the court directed adherence to the Conciliator's findings and referral for establishment of union membership as a precursor to a recognition agreement

Reasoning

The Conciliator had earlier found that both parties should act in utmost good faith and, with the Labour office's assistance, review union membership against total unionisable staff with a view to signing a formal recognition agreement. Since those recommendations had not been adhered to, the court made them a directive of the Court and referred the parties back to the Conciliator.

p. 4

Legal principles established

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  • Where a recognition dispute is contested on affidavit evidence amounting to word against word, the court may refer the parties to a conciliator for independent fact-finding on actual union membership before a recognition agreement is signed
  • Parties to a trade dispute must act in utmost good faith and adhere to the recommendations of a conciliator

Court orders

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  1. 1.Parties referred back to the Conciliator to undertake a fact-finding mission and establish union membership at the Claimant's premises and report back to Court within 60 days
  2. 2.Parties directed to conform to the recommendations of the Conciliator, including acting in utmost good faith and reviewing union membership vis a vis total unionisable staff with a view to signing a formal recognition agreement
  3. 3.Parties to desist from making statements or involving third parties not directly concerned in the dispute
  4. 4.Parties encouraged to continue negotiating in order to resolve the matter
  5. 5.Each party to bear their own costs
Jurisdiction invoked
Section 12 of the Industrial Court Act 2011; Sections 62, 76, 77, 80 and 81 of the Labour Relations Act; Section 87 of the Employment Act; Rule 16 and Rule 27(1)(c) of the Industrial Court (Procedure) Rules 2010

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, "Agility Logistics Limited v Kenya Long Distance Track Drivers and Allied Workers Union [2015] KEELRC 59 (KLR)", Case Analysis (2015). Cause No. 261 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/59/eng@2015-12-17

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