Kenya Union of Commercial Food and Allied Workers v New Adatia Wholesalers Limited [2018] KEELRC 2469 (KLR)

THE REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT BUNGOMA

CAUSE NO. 31 OF 2017

[formerly Kisumu  Cause No. 12 of 2017]

KENYA UNION OF COMMERCIAL

FOOD AND ALLIED WORKERS.....................................................CLAIMANT

VERSUS

NEW ADATIA  WHOLESALERS LIMITED..............................RESPONDENT

JUDGMENT

1. By a Memorandum of claim dated 20th December, 2016 the claimant  union seeks recognition by the Respondent in terms  of  Section 54 of the Labour Relations Act, 2007.

2. The claimant further  seeks  an order for  payment of Kshs. 428,000/- with interest at 20% being union dues, owing to the  claimant's union from the   Respondent from 24th March, 2016, the date the  union submitted the check   off     forms to the Respondent.

3. The basis of the suit is  that the claimant  has recruited 65 unionisable employees of the Respondent out of a total of  88 unionisable employees. That   this comprises 73. 8% of all the unionisable employees of the Respondent meaning that the claimant has fulfilled the conditions precedent for  recognition.

4. The claimant further submits that it is the correct union for the sector, in terms of the objects of  its Constitution, and that  there is no  rival union claiming to represent the unionisable employees of the Respondent.

5. The claimant relies on the check-off  forms attached to the   Memorandum of claim and the list of employees of the Respondent found in the Respondent's supplementary list of  documents filed on 10th February, 2017.

6. The claimant prays the suit be allowed  as prayed.

RESPONSE

7. The claim is opposed by the respondent vide a  Memorandum of response of    the Respondent  filed on 26. 1.17 on the basis that the  claimant  union  has not at any one time recruited a simple  majority of all unionisable employees of the Respondent.

8. That the dispute was  referred to concilliation and the County Labour Officer    Bungoma  Mr. Peter Otwane made a report in which he recommended that the claimant union be accorded a  conducive environment to conduct fresh credible recruitment of members since the present check – off was not  authentic and the signatures of the employees in that check-off list did not  match  those of the  targeted employees.

9. The conciliator further found that  only 35 employees out of 89 names submitted were authentic.

10. The Respondent submits  that the claimant union has not  satisfied the requirements of Section 54 of the  Act, and the  claim be dismissed with costs.

DETERMINATION

11. Section 54 (1)  of the Labour Relations Act, 2007 reads,

“An employee, including an employer in the public sector, shall recognize a  trade union for purposes of collective  bargaining if that  trade union represents the simple  majority of unionisable employees.”

12. The court has carefully perused  the check off list  dated 24. 3.16 submitted by the claimant union to the Respondent and having compared the said list of employees to the list of employees submitted  to court  by the Respondent on 10th February, 2017 and 7th March, 2017, is satisfied that the documents contain the same persons working for the Respondent and had  as early as 24th  March, 2016 joined membership  of the claimant union.

13. The court has considered the conciliation report and found that the conciliator not being a  handwriting expert, had no basis of  concluding that the signatures contained in the check-off list were not genuine.

14. It is not for the  Respondent, once  served with a check-off list,  issued in terms of  The Labour Relations Act, to confront the employees individually and    interrogate them about their having  joined the union.  The Respondent's only   duty is to implement the deductions, unless and until the employer receives a written complaint from any affected employee that he/she did not   join the union voluntarily.

15. It should be remembered that the check-off form, is a statutory document issued by the Minister in terms  of Section 48 (2) and (3) of the Labour Relations Act and the form is presumed to be valid  unless proved otherwise.

Under Sub-section 48 (6) -

“An employer may not make any deductions from an employee who has notified  the  employer  in writing that the employee has resigned from the union.”

16. In the present case the Respondent  submitted further list of documents dated   29th June, 2017 in which  twenty (21)   withdrawal letters from the union are attached.

17. If the court was to assume that these are genuine withdrawals after the check- off list  was submitted and recognition of the union sought, which is not the case, the claimant union is left with 44 unionisable members out of  88    unionisable employees.  That  still leaves  the  claimant  union with 50  + 1 %   of all the unionisable  employees.

18. The claimant union has placed on oath allegations of intimidation of its members by the Respondent.  These allegations are not  without merit. It beggars belief that employees who had voluntarily joined the union would wake up a few days later, between 22nd June, 2016  and  24th July, 2016 and start writing letters of  withdrawal  for no reason  provided.

19. The court finds  as credible the evidence of  intimidation adduced by the claimant union  and directs the Respondent to desist  from  violating Section (5) of the Labour Relations Act as read with Article 41 of the  Constitution of Kenya 2010, which provisions guarantee all employees freedom of association and that of joining a union of choice.

20. Accordingly, the claimant has proved  on a balance of probabilities, that it has recruited a simple majority of all unionisale employees of the Respondent and that the claimant is eligible for  recognition by the Respondent in terms of Section 54 (1) of the Labour Relations Act, 2007. In this respect, the court relies on  the decision in  ELRC No. 526 of 2014 Kenya Union ofCommercial Food & Allied Workers  Vs. Jade Collection Limited by Wasilwa J. which had similar facts to  this case and the court  granted recognition to the union.

21.  The court enters judgment in favour of the claimant as against the Respondent as follows:

(a). The Respondent is directed to  sign a Recognition Agreement with the claimant union within thirty (30) days of this judgment.

(b). The Respondent is directed to remit all arrear  union dues to the claimant union in the sum of Kshs. 428,000/- as prayed, less any amount already remitted and continue to  so remit on a monthly  basis.

(c). The claimant to pay interest at court rates in respect of  Kshs. 428,000/- union dues quantified from date of filing  suit till payment in full.

(d). The Respondent to pay costs of the suit.

Dated at Bungoma this 26th day  of January, 2018.

HON. MATHEWS NDERI NDUMA , JUDGE

EMPLOYMENT AND LABOUR RELATIONS COURT

BUNGOMA.

In the presence of:-

Mr.  John Owiyo   for Claimant

Mr.  Maloba  for Respondent

Mr. Chrispo Aura – Court clerk.