Kenya Tertiary & Schools Workers’ Union - Ketaswu v Board of Management, Nyakoiba Secondary School [2018] KEELRC 1173 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU

CAUSE NO. 40 OF 2018

(Before Hon.  Justice Mathews N. Nduma)

KENYA TERTIARY & SCHOOLS WORKERS’ UNION - KETASWU...............CLAIMANT

VERSUS

THE BOARD OF MANAGEMENT, NYAKOIBA SECONDARY SCHOOL..RESPONDENT

J U D G M E N T

1. The Claimant vide a Statement of Claim filed on 14th February, 2018 seeks the following orders:-

a. An order directing the Respondent to remit all the deducted and withheld trade union dues for May 2017 to date.

b. Direct the Respondent to sign a Recognition Agreement with the Claimant Union within 14 days of judgment.

c. Costs of the suit.

Facts of the Claim

2. In the months of January and February 2016, the Claimant Union recruited and registered 35 unionsable employees of the Respondent through check-off forms dated 4th and 29th February, 2016 produced and marked ‘3’.

3. At all material time, the unionsable employees were deducted trade union dues in respect of their membership with the Claimant Union.

4. The Respondent acknowledges the said membership and union dues deductions and remitted the said dues to the Claimant Union twice through Cheques on 2nd June, 2016 and 27th February, 2017 being payment of union dues up to April, 2017.

5. Since May, 2017 the Respondent has deducted and withheld union dues.  The Respondent demanded a court order to remit the dues to the union.

6. The union sent a copy of a Recognition Agreement to the Respondent with a request to sign the same.  A copy is produced and marked ‘4’.

7. The Respondent prays that it be recognized having satisfied the requirements of section 54(1) of the Labour Relations Act and that Union dues be remitted accordingly.

Response

8. The   Respondent   filed a Memorandum of Response on 10th April, 2018 in which it denies the claim by the Applicant stating there is in existence a rival union called KUDHEIHA Union which claims the deducted union dues from the Respondent.

9. That there is no evidence that the unionisable employees have withdrawn from KUDHEIHA.  That the documents presented by the Claimant Union are fake.  That conciliation before the Minister for Labour has not been concluded and the suit is premature.  That the suit be dismissed with costs.

Determination

10. A report by the conciliator, from Ministry of Labour Mr. C. I. Gondosio is based on submissions by the Respondent only the Claimant Union having failed to attend the conciliation process nor file a Memorandum to help the process of conciliation.

11. The conciliator concludes that the authenticity of the signatures in the check-off system is in doubt.  It is therefore doubtful that the alleged members of Claimant Union had withdrawn from KUDHEIHA.  Proper authentication may only be possible if the Claimant Union attends the conciliation process and submit its memorandum accordingly.  Furthermore, KUDHEIHA is an existing union in the school and needs to be heard in the dispute.

12. The conciliator therefore declined to recommend the employer to recognize the Claimant Union and remit the union dues to it.

13. Following the decision by Maureen Onyango J. in Kenya Hotels & Allied Workers Union Vrs Ratna Tsavo Lodges & another [2012]eKLR,I find that this dispute was referred to court prematurely and unprocedurally.  The report by the conciliator is testimony to this fact.  For the aforesaid reasons, the suit lacks merit and is dismissed.

14. The Claimant union is at liberty to pursue the incomplete conciliation proceedings, and enlist KUDHEIHA in the reported dispute to allow a final determination of the matter.

Dated and Signed in Kisumu this  20th day of September, 2018

Mathews N. Nduma

Judge

Appearances

Japheth A. Agura for Claimant Union

Secretary Board of Management for Respondent

Chrispo – Court Clerk