Kenya Plantation & Agricultural Workers Union v Baraka Roses Limited [2022] KEELRC 588 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU

ELRC CAUSE NUMBER E048 OF 2021

KENYA PLANTATION &

AGRICULTURAL WORKERS UNION........................................................CLAIMANT

-VERSUS-

BARAKA ROSES LIMITED................................................................... RESPONDENT

(BEFORE HON. JUSTICE DAVID NDERITU)

RULING

1. INTRODUCTION

1. Vide a Memorandum of claim dated 7thSeptember,  2021 the Claimant prays for:-

(1) A declaration that the failure by the Respondent   to sign the Recognition Agreement between itself   and the Claimant as unlawful.

(2) A declaration that the actions by the Respondent   amount to unfair labour practices.

(3) An Order prohibiting the Respondent from  victimizing, harassing, intimidating and  terminating  the employees who have signed up for union  membership.

(4) An order compelling the Respondent to  commence deduction of union dues from  emoluments of the grievants and remittance of the  same to the Claimant.

(5) An order directing and/or compelling the  Respondent to pay the arrears for union dues  from the time it was  served with the membership  form until the date of judgment.

(6) An order compelling the Respondent to conclude  a recognition agreement with the Claimant within  fourteen (14) days from the date of judgment.

(7) Costs of this cause.

(8) Interest on (4) hereinabove from the date of  service of  check-off form upon the Respondent  until the date of payment in full.

(9) Any other relief that this Honourable Court may   deem fit and just to grant.

2. Together with the claim was filed a Notice of motion dated  7th September, 2021 under certificate of urgency seeking  the following:-

(1) This application be certified urgent, heard exparte   in the first instance and service be dispensed with.

(2) This Honourable Court be pleased to prohibit  and/or restrain the Respondent from victimizing,  harassing, threatening to dismiss its employees  who  have joined the Claimant/Applicant from  employment pending the hearing and  determination of this application and/or cause.

(3) This Honourable be pleased to compel the  Respondent to deduct and remit union dues from  the emoluments of the three hundred and six (306) employees of the Respondent or any number  thereof.

(4) This Honourable Court be pleased to compel the   Respondent to sign a recognition agreement with   the Claimant/Applicant herein.

(5) Costs of this application be borne by the  Respondent.

3. The said application is expressed to be brought under  Articles 36 and 41 of the Constitution, Section 12 of the  Employment and Labour Relations Court Act, and  Sections 4 and 48 of the Labour Relations Act.  It is  supported by an affidavit of THOMAS KIPKEMBOI  sworn on 7th September, 2021 and there are several  documents annexed thereto.

4. The Respondent entered appearance on 23rd September,  2021 and filed a defence on 23rd November, 2021 in which  it prays that this cause be dismissed with costs.

5. In response to the Notice of motion the Respondent filed a  Replying Affidavit on 9th November, 2021 sworn by  WESLEY SIELE on 5th November, 2021 together with  several annextures thereto.

6. By consent, it was agreed that the application be disposed  of by way of written submissions; the Claimant filed on 9th  and the Respondent on 14th December, 2021.

II. ISSUES FOR DETERMINATION

7. This court has gone through the application, the supporting  affidavit and the annextures thereto, the replying affidavit  and the annextures thereto, and the written submissions  from sides, as well as the entire pleadings, and the  following issues manifest for determination:-

(a) Pending the hearing and determination of this cause,  should this court issue an injunctive order prohibiting  and or restraining the Respondent from victimizing,  harassing, and/or threatening to dismiss its  employees  who have joined the  Claimant/Applicant?

(b) Pending the hearing and determination of this cause,  should this court issue a mandatory injunctive order   compelling the Respondent to deduct and remit  union dues from the emoluments of 360 employees  of the Respondent, or any such number thereof who  have signed into membership of  the Claimant and  remit the said dues to the Claimant/Applicant?

(c) Pending the hearing and determination of this cause,  should this court compel the Respondent to sign a  recognition agreement with the Claimant/Applicant?

(d) Who should meet the costs of this application?

This court shall look into each of the above issues as hereunder.

III. ALLEGED  HARASSMENT, VICTIMIZATION,  INTIMIDATION AND THREATS

8. Harassment, victimization, and intimidation of employees  by an employer for reason of joining a union is  unconstitutional and unlawful. Article 36 of the  Constitution guarantees freedom of association, Article   37 guarantees right to assembly, demonstration, picketing  and petition, and Article 41 guarantees the right to fair  labour practices.

9. Section 46(c) of the Employment Act outlaws  termination or disciplinary actions against an employee  based on membership or proposed membership to a trade  union.  Further, Sections 4 and 5 of the Labour Relations  Act  protect the right of an employee to associate with  others in a trade union and carrying out lawful activities in  such a union and association.

10. It would therefore be unlawful for an employer to  victimize, harass, threaten, and or intimidate an employee  for reason of joining or intending to join a trade union or  carrying out or taking part in lawful activities of such   union.

11. However, this court has gone through the pleadings in this  cause and more so the supporting affidavit to the  application and I am not able to identify any acts by the  Respondent that would amount to victimization,  harassment, threats, and or intimidation of the employees  alleged to be members of the Claimant/Applicant or any of  them or at all.

12. There is no affidavit filed by any employee or employees  of the Respondent who are members of the  Claimant/Applicant alleging such unlawful actions against them by the Respondent or its agents or proxies.  The letter  dated 7th September, 2021 addressed to the Managing  Director of the Respondent by the Claimant is not of itself  evidence that there has been harassment, intimidation,  victimization, or threats by the Respondent to the alleged  employees or members of the Claimant.

13. The issue as to whether there has been threats, harassment,  intimidation, or victimization by the Respondent is a  matter of  fact that can only be proved by way of evidence   either oral or documentary to be placed before the court by  way of an affidavit and or oral testimony. No such  evidence has been placed before this court.

14. For the foregoing reasons, it would be premature for an  order of injunction to issue prohibiting or restraining  the  Respondent from doing that which has not been  demonstrated to be eminent or to have occurred.   It is for  these reasons that prayer 2 of the application is hereby  denied.

IV.   PAYMENT AND REMITTANCE OF UNION DUES

15. From the pleadings filed in this cause and the evidence  placed before this court by way of affidavits from both  sides, one of the hotly contested issues is on the number of  employees of the Respondent who have lawfully joined  the Claimant.  In paragraph 7 of the supporting affidavit  the Claimant avers that it has recruited 306 employees of  the Respondent into its membership. However, in  paragraph 2 of the replying affidavit the Respondent avers  that it is only 93 of its employees who have joined the  Claimant and that it has been collecting and remitting all  union dues to the Claimant.

16. The Claimant has not filed a list of the names of the  employees of the Respondent who have joined it.  There   are no duly executed forms or membership documents  filed in court to authenticate the alleged membership to  enable this court to verify the accurate membership and the  numbers thereof.

17. In view of the foregoing, the issue of numbers is  contested  and the averment by the Respondent that it has  been remitting  to the Claimant dues for 93 of its  employees who are union members has neither been  denied nor controverted by the Claimant.

18. These twin issues of membership and collection and  remittance of union dues cannot be determined at this  interim stage without the benefit of weighing the evidence  from both sides in a full hearing.  There are also  allegations by the Respondent of withdrawal by some of  its employees from membership with Claimant.

19. In the circumstances, granting prayer 3 of the application  would prejudge the subject issues without hearing the  parties and that request is hence denied at this stage.

V.   RECOGNITIONAGREEMENT

20. As noted above, the issue of the number of the employees  of the Respondent who have joined the Claimant is a hotly  contested issue. The Claimant avers that they have  attained the numbers necessary for a recognition  agreement to be executed with the Respondent while the  Respondent avers that the numbers do not add up.   The Respondent further avers that there is no need for execution of such a recognition agreement as there is  already one in existence between the Claimant and the  entire Floriculture sector across Kenya.

21. For the above reasons, the issue as to whether the parties  herein legally need to execute a recognition agreement,  and whether a binding agreement is already in force, is  contested and calls for a full hearing and this court is  hence reluctant to issue any orders on the same at this  interim stage.  The net result is that prayer 4 in the  application is denied at this interlocutory stage.

VI. LAWAPPLICABLE

22. The prayers sought by the Claimant in this application are  to a large extent the same ones prayed for in the main  cause.  This court is to a large extent apprehensive that if  the prayers sought are granted at this interim stage there is  a great danger of prejudging the entire cause at an interim  stage.

23. The principles upon which interim injunctive orders may  be issued were in earnest set out in the popular case of  Geilla Vs Casman Brown Co. Ltd 1973 EA 358.  An  applicant has to first demonstrate that it has a prima facie  case with a probability of success.  A prima facie case is a  case beyond just an arguable case. Cumulatively an  applicant has to demonstrate that if the interim conjunctive  order is denied it shall suffer or is likely to suffer  irreparable loss/damage/injury.  If the court is still in doubt  it has to consider the balance of convenience.

24. For the reasons stated in the foregoing  parts of this ruling,  this court is of the considered view that the Claimant has  not demonstrated that it has a prima facie case capable of  persuading this court to grant the orders sought at this  interim stage.  This court is not alluding that the Claimant  may not have an arguable case, but this court holds that it  is more prudent to allow the parties to tender their  evidence in the main cause before granting or denying  the prayers sought.

25. Further, this court holds that the Claimant has not  demonstrated that it shall suffer irreparable loss, damage,  or injury that may not be compensated by way of an award  of damages if the interim orders are denied.  The balance  of convenience at this stage is in  favour of not granting  the interim orders sought, for among other reasons not to  prejudge the main cause at this interlocutory stage.

26. This court is, without prejudice, of the opinion that the  parties have not exhausted negotiations, reconciliation,  mediation and or other mechanisms that may settle this  matter out of court.

VII. COSTS

27. This court orders that the costs of this application be in the  cause.

VIII. DISPOSAL

28. The net effect of the foregoing is that the Notice of motion  dated 7th September, 2021 by the Claimant is hereby  dismissed with costs in the cause.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 9TH DAY OF MARCH, 2022.

..................................

DAVID NDERITU

JUDGE