Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers v BOM – Lirhanda Girls High School [2022] KEELRC 380 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONSCOURT

AT  BUNGOMA

CAUSE NO. E016 OF 2021

KENYA UNION  OF DOMESTIC, HOTELS,

EDUCATIONAL INSTITUTIONSANDHOSPITAL WORKERS.........CLAIMANT

VERSUS

BOM – LIRHANDA  GIRLS  HIGH SCHOOL....................................RESPONDENT

R U L I N G

1. The Applicant filed a statement of Claim dated 27th December  2021  and a Certificate of urgency with Notice of Motion Application  all filed in court on 30th December  2021. The Notice of Motion Application is brought  under Section 13 of  the Employment  and Labour Relations  Court Act  and Procedure Rules 2016  seeking the following orders:-

a.  That this application is certified urgent and heard ex-parte in the first instance pending inter-parte hearing.

b. That  the Honourable Court be pleased to issue temporary orders restraining the Respondent from harassing , suspending, terminating otherwise preferring disciplinary action of any kind on members of the Claimant  pending -inter-parte hearing and determination of this  application.

c. That the Honourable Court orders the Respondent to stop unfair labour practices.

d. That the Honourable Court compels the Respondent to deduct and remit Union dues as required by law.

e. That  the Honourable court compels the Respondent to sign the forwarded recognition agreement to allow for negotiation of a collective Bargaining Agreement.

f. That the costs of this application be awarded to the Claimant

g. Any other relief the court deems fit.

2. The grounds of the Application are stated with supporting Affidavit of Thomas Mboya sworn on the 27th December  2021.

3. Order (a) and (b) of the Application are spent.

4. The Respondent entered appearance vide Memorandum of appearance on 21st January 2022 through the law firm of Amasakha  & Company Advocates.  The Respondent  in response to the suit and the Application filed Replying Affidavit sworn by Linda Muhonja Mulehane on the 19th January  2022 and filed in court on the 21st January 2022.  The Respondent also filed in court statement of response   to the claim on the 2nd February, 2022.

5. The Application was canvassed by way of written submissions pursuant to directions of the court.  The Applicant’s submissions labelled “ Final submissions “  are dated  31st January  2022  and filed in court  by Justine Waningu Kamuye   on the 1st February  2022.  The Respondent’s submissions drawn by Amasakha & Company Advocates are dated 4th February 2022  and filed in court on the  7th February, 2021.

The Applicant’s Application in summary

6. The Applicant states that  19 members of staff out of total 20 non-teaching  staff of the Respondent  joined the Claimant’s Union between 29th December  2020  and 18th August 2021 translating to 95% of the total non-teaching  staff workforce and have surpassed the minimum threshold pursuant to Section 54 of the Labour Relations Act.

7.  That  vide   letters dated 20th January  2021, 30th August  2021  and 6th October, 2021  the Applicant forwarded to the Respondent authority to deduct and remit union dues in accordance with  Kenya Gazette Supplement 135, Legal Notice No. 195 dated 1st November, 2018 and Sections  48, 49 and 50 of the Labour Relations Act and the deductions were to commence on 31st January  2021.  That the Applicant forwarded the Notices  and the same were received  by the Respondent. That the Claimant further forwarded  the recognition agreement to the Respondent vide letter dated 20th July  received  23rd July,2019 and proposed to meet the Management for signing in line with the Labour Relations Act  Section 54.

8. The Applicant states it educated members at the school on the 22nd July, 2021  and the principal in attendance  promised to sign the recognition agreement.  That the Principal further told the school bursar to comply in so far as deduction and remittance of Union dues was concerned. That the Principal changed her mind and started threatening workers to withdraw from the Union and has since subjected  the members to unfair labour practices with some of the members under  suspension.  These statements are supported by Thomas  Mboya  who avers  to be Branch Secretary Kakamega  and National Treasurer of the Claimant and states he read the averments made in the Application and confirms the same to be true and correct.

9. The Respondent in response to the Application filed replying affidavit  sworn by Linda  Muhonya Melehane who avers  she is the Principal of Lihanda Girls  High School as well as the Secretary  of the Respondent and  that  is authorized to  Respondent.  That she had been advocates by her advocates on record the Application is bare and not supported by documents referred to in the Application which ought to be marked and Commissioner on oath.  The Principal denies the Claim that the Claimant has registered majority of non- teaching staff workforce of the Respondent as its members.  The Respondent avers that they have not signed  a recognition  agreement with the Claimant  and thus it will not be proper to effect deductions and remittances of Union dues. That  the Claimant has not been engaging the Board of Management and instead has been trying to arm twist the Principal  to sign a recognition agreement in her personal  capacity which decision lies  with Board  of Management.

10. The Principal states that  on the 10th January  2022  she brought  to the attention of the Board the matter in presence of a representative from the Claimant’s  Union and a  Committee was set upto engage the Claimant. That  the allegation of intimidation and harassment is not supported by any documentary evidence.  That on 7th January 2022 she received a letter form the Chief Industrial  Relations Officer dated 23rd November  2021  declaring a dispute and appointing a conciliator  ( LMM-1).

11. The Application was canvassed by way of written submissions. The Applicant’s submissions are dated 31st January  2022 and filed on the 1st February  2022. The Respondent’s submissions are dated  4th February, 2022 and filed 7th February  2022.

DETERMINATION

12. The Application is brought to court under  Section 13 of the Employment  And Labour  Relations Act and Procedure Rules  2016.

Section 13  of the Employment and Labour Relations Court Act   provides for enforcement of court orders. The application before court is not for enforcement of any order of the court consequently from the outset the Application is not grounded on irrelevant provision of the law.  The court has reviewed the orders sought in the Application and finds that there ought to be an affidavit to affirm on the facts  and annex relevant documents as exhibits.  That is not the case here.  The grounds stated on the Application remain mere allegations.  The court declined to grant order  2 at exparte stage.  The remaining orders 3,4 5 are substantive and are the same orders sought  under  the claim.   The Court finds that orders 3,4,5 under the Application  can only be considered on merit. That means the parties have to produce documents and witnesses statements  as evidence in their cases. The court notes the Applicant’s submissions are titled “ final submissions “and prays for judgement . This was an application and hence not ripe for grant of final orders.

13. The court does not find the exhibit “LMM-1’  annexed to affidavit of Linda Mohanja Mlehane  to relate to the dispute before court.  The dispute state therein is:-

“Refusal  by the school Board of Management to honour payment of terminal benefits to Henry Shilovele Lisuli contrary  to parties   CBA  and labour laws of Kenya”

That is not dispute  before court in the instant case. The case before court is alleged unfair labour practices which issue requires the claimant to lead evidence to prove its existence.  The other issues are refusal to deduct and remit Union dues, and refusal by Respondent to sign recognition agreement.

14. Section 54 (1) of the Labour Relations Act, provides as follows:- ‘an employer 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’’ The Applicants allege they have met the threshold(Appendix 1).

15. The Applicant have alleged that the Respondent has failed  and/ or refused to sign recognition agreement despite the union meeting the threshold. Section 54 (6)  of Labour Relations Act provides, ‘if there is a dispute  as to the right of a trade union  to be recognized for the purposes of collective bargaining  in accordance  with this section  or the cancellation of recognition agreement the trade union may refer the dispute for conciliation in accordance with provisions of Part VIII.’’

16. The Court is of the considered opinion the first port of call in this dispute was the Conciliator as per the process described under part VIII of the Labour Relation Act . There is no evidence placed before the court that this dispute was referred to the conciliator as envisaged under section 54(6) of the Labour Relations Act.

17. The court finds the Application bad in law for being brought under wrong   provision of the law and for seeking permanent orders. Secondly that the application and the claim are premature for non-compliance with the provisions of section 54(6) of the Labour Relations Act.  Consequently, the Application dated 25th December 2021 is dismissed. Costs in the cause.

18. Further the Court hereby refers the dispute to Conciliation under section 54(6)  and PART VIII of the Labour Relations Act with immediate effect for settlement. The Conciliator to file a report in court on the dispute within 60 days from today. The Applicant/Claimant to extract this  Order and serve the same at the Kakamega County Labour Office.

19. The hearing of the Claim dated 27th December 2021 is stayed pending the outcome of the conciliation process.

20. It is so ordered.

DATED, SIGNED AND DELIVERED IN BUNGOMA THIS 31ST DAY OF MARCH, 2022

J.W. KELI

JUDGE

IN THE PRESENCE OF

Court Assistant: Brenda Wesonga

For  Claimant:  Kamunya

For Respondent:- Amasakha