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IndustrialAllowedCause 33 of 2006· [2006] KEIC 6 (KLR)

Kenya Shoe & Leather Workers’ Union v House of Leather (Owned By Levs Trading Co. Ltd.) (Cause 33 of 2006) [2006] KEIC 6 (KLR)

Industrial Court of Kenya
24 August 2006
2,468 words in judgment
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The bottom line

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Kenya's Industrial Court ordered House of Leather to recognise the workers' union because it had signed up most employees, rejecting the company's attempt to hide its legal identity.

What this practically means

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Executive summary

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The Minister for Labour referred a trade dispute to the Industrial Court under Section 8 of the Trade Disputes Act, Cap. 234, concerning the Union's demand for a recognition agreement with House of Leather, a retail leather business. The Union claimed it had recruited 39 of 53 unionisable employees (over 51%) and served check-off forms, but the Managing Director refused recognition, asserting the company was a retail business outside the Union's scope, that employees were uninterested in union membership, and that management dealt directly with employees. The Minister's Investigator, Mr. J.A. Yidah, recommended against recognition, finding the Union had recruited only about 10 employees and had not followed prescribed recruitment procedures; the Union rejected those findings. At the hearing, counsel for the Company revealed for the first time that the correct legal entity was Levs Trading Company Limited, and argued the Union had sued the wrong party, that the check-off forms were inauthentic, and that the Minister's findings stood unchallenged. The Court held that Rule 3(a) of the Union's constitution covered the Company's employees including shoes shops, that no rival union claimed recognition, and that the Union had met the two conditions precedent in Section 5(2) of the Act. The Court rejected the Investigator's report as self-contradictory and held that the Company's concealment of its true identity meant it did not come to court with clean hands. The Court awarded that the Company accord formal recognition to the Union forthwith and that the parties sign a recognition agreement within two months for collective bargaining purposes.

Key legal issues

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01

Whether the Union satisfied the recognition requirements under Section 5(2) of the Trade Disputes Act

Holding

The Court found the Union had recruited a simple majority (39 of 53, about 73.6%) of unionisable employees and that no rival union claimed recognition, so the requirements were fulfilled.

Reasoning

Rule 3(a) of the Union's constitution covered employees engaged in the leather industry including shoes shops, making the Union the appropriate one to represent the Company's employees. The Union claimed 39 of 53 unionisable employees as members, exceeding the 51% simple majority threshold. The Investigator's contrary findings were rejected as self-contradictory. No rival union was claiming recognition.

p. 5
02

Whether the dispute was bad in law because the correct legal entity was Levs Trading Co. Ltd. and not House of Leather

Holding

The objection failed; the company's concealment of its true identity meant it did not come to court with clean hands and the misdescription could not defeat the dispute.

Reasoning

While a limited liability company is a distinct legal entity, the Company knew of its own existence and had its certificate of incorporation since the dispute arose. It withheld its true identity from both the Union and the Investigator until the hearing. This non-disclosure disentitled it from relying on the misnomer to have the dispute dismissed.

p. 5
03

The weight to be attached to the Minister's (Investigator's) findings and recommendation

Holding

The Court took great exception to the entire Investigator's report, finding it self-contradictory, and declined to adopt its recommendation against recognition.

Reasoning

The Company argued that the Minister's findings and recommendation were unchallenged and correct. However, the Court found the report internally contradictory, particularly regarding the recruitment figures and the check-off system, and therefore declined to give it effect.

p. 5
04

Employees' freedom of association and the employer's duty to recognise trade unions

Holding

The Court reaffirmed employees' constitutional right to join trade unions and deprecated employers who refuse recognition.

Reasoning

Counsel for the Union invoked Section 80 of the Constitution guaranteeing freedom of association. The Court endorsed the view that employers who resent the emergence of trade unions in order to dictate terms of service are fighting a losing battle, and declared that the era of refusing recognition and denying employees the right to join unions should be over.

p. 5

Legal principles established

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  • The two conditions precedent for recognition of a union by an employer are a simple majority of eligible employees in membership and the absence of a rival union claiming recognition.
  • A limited liability company is a distinct legal entity, but misjoinder of the company's trade name is not a ground for rejecting a dispute where the company concealed its true identity.

Court orders

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  1. 1.The Company to accord formal recognition to the Union forthwith
  2. 2.The parties to sign a recognition agreement within two (2) months from the date of the award for purposes of collective bargaining
Jurisdiction invoked
Section 8 of the Trade Disputes Act, Cap. 234, Laws of Kenya

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 Shoe & Leather Workers’ Union v House of Leather (Owned By Levs Trading Co. Ltd.) (Cause 33 of 2006) [2006] KEIC 6 (KLR)", Case Analysis (2006). Cause 33 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2006/6/eng@2006-08-24

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