Kenya Union of Commercial, Food and Allied Workers v House Mart Limited [2021] KEELRC 666 (KLR)
The bottom line
#A Kenyan court declined to force an employer to recognise a union because, after six years of delay, current membership could no longer be proven on the shop floor.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant had recruited a simple majority (51%) of the respondent's unionisable employees so as to qualify for recognition under section 54 of the LRA
- 2.Whether the respondent should be ordered to deduct and remit union dues from employees who signed check off forms
- 3.Whether the respondent victimised, intimidated or terminated employees on account of unionisation
- 4.Whether, given the passage of time since 2014-2015, the orders sought would still serve industrial peace
Key legal issues
#Recognition threshold under section 54 of the LRA
The claimant arguably met the simple majority threshold (even discounting 10 duplicated names, 105-109 of 200 employees was above 51%), but the court declined to grant recognition orders because of the passage of time and uncertainty about current membership
The court computed the membership figures: 115 on the check off forms, 105 after removing 10 double registrations, being 52.5% of 200 employees, above the 51% threshold. However, the claim was filed in 2015 and determined in 2021. The claimant did not show current membership status on the shop floor, and with movement of labour the orders would not issue in vain or aid industrial peace.
Deduction and remittance of union dues
Union dues are deductions authorised under section 19(1)(f) and (g) of the Employment Act, which employees may request in writing
Section 17(11) of the Employment Act forbids employers limiting how employees dispose of wages, and section 19(1)(f) and (g) oblige employers to deduct amounts authorised by written law or requested in writing by the employee. Union dues fall in this category, so employees are free to require deduction and remittance.
Alleged victimisation of union members
The claim failed for lack of evidence; the supporting affidavits did not annex evidence of affected employees
The affidavits of Benson Luvayi and Michael Kamau supported the claim and certificate of urgency but attached no evidence of employees allegedly victimised or terminated for unionisation. The court thus found the victimisation claim unsupported.
Whether casual employees were properly counted in the recognition threshold
The respondent alleged duplication and recruitment of casuals not in its employment but failed to state its actual number of unionisable employees or identify the casuals
The respondent claimed some recruits were day-to-day casuals and others duplicated, listing 10 names said to be registered twice, but did not state its number of unionisable employees nor identify the casual employees. Even after removing duplicates, the claimant remained above 51%.
Legal principles established
#- To qualify for recognition a union must prove recruitment of a simple majority of the employer's unionisable employees, and the court will take into account the sector in which the employer operates (section 54(1)-(3) and (8) LRA)
- Union dues are lawful deductions under section 19(1)(f) and (g) of the Employment Act and employees may require the employer to deduct and remit them
Court orders
#- 1.The claim seeking recognition of the claimant by the respondent is declined
- 2.Parties shall return to the shop floor to commence the process of recognition and may move the court upon good cause
- 3.Each party shall bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Labour Relations Act, 2007, section 54; referral of the recognition dispute to the court after unresolved conciliation under section 62 of the LRA
Relief refused
#Order compelling the respondent to recognise the claimant union as the sole labour union representing its employees
The court found the membership figures oscillating and the current shop-floor position uncertain after six and a half years, and held that issuing the orders would not aid industrial peace
Order directing the respondent to deduct and remit union dues from unionisable employees who signed check off forms
Not satisfied that the claimant retained the listed membership; the court directed parties to ascertain present membership instead
Order restraining the respondent from victimising, intimidating, harassing or dismissing union members
The victimisation claim was unsupported by evidence; the supporting affidavits did not attach any evidence of affected employees
Order compelling the respondent to engage the claimant in collective bargaining within 30 days of signing a Recognition Agreement
Followed from the decline of the recognition claim
Costs of the suit
Each party to bear own costs
Costs
Each party shall bear own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For a union to qualify for recognition it ought to prove that it has recruited a simple majority of the employees of the respondent, where the employer is a single entity
The line I too thin with the oscillating numbers. A fact finding at the shop floor is imperative to ensure industrial peace.
With movement of labour and recognising the time span taken to address the matter herein, the response taken into account, to issue the orders sought would not aid industrial peace.
Accordingly, the claim herein seeking recognition of the claimant by the respondent is hereby declined; parties shall return to the shop floor to commence the process of recognition and upon good cause move the court.
Each party shall bear own costs.
Issues in the judgment
#The judgment contains typographical and internal errors: 'The line I too thin' appears to mean 'The line is too thin', and the elapsed time is stated inconsistently as 'It is since 6 years and a half (6 14).' while the claim was filed 29 April 2015 and judgment delivered 14 October 2021
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial, Food and Allied Workers v House Mart Limited [2021] KEELRC 666 (KLR)", Case Analysis (2021). Cause No. 713 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/666/eng@2021-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.