Jumbo Foam Mattresses Industries Limited v Kenya Chemical and Allied Workers Union [2020] KECA 285 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

[CORAM: OKWENGU, KIAGE & SICHALE, JJA]

CIVIL APPEAL NO. 6 OF 2017

BETWEEN

JUMBO FOAM MATTRESSES                                          

INDUSTRIES LIMITED..............................APPELLANT

AND

KENYA CHEMICAL AND ALLIED                                  

WORKERS UNION...................................RESPONDENT

(Being an appeal from the judgment of the Industrial Court of Kenya at Kisumu (Wasilwa, J) dated 14^th March, 2014

IN

Kisumu Civil Cause No. 240 of 2013)

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JUDGMENT OF THE COURT

On 26th January, 2017, Jumbo Foam Mattresses Limited filed an appeal against the judgment of Wasilwa, J dated 14^th March, 2014.

The appeal stems from a claim filed at the Industrial Court by Kenya Chemical and Allied Workers Union (the then claimant and the respondent herein) against Jumbo Foam Industries Limited (the then respondent and the appellant herein) in which the respondent blamed the appellant for refusal to sign a recognition agreement, to implement deductions of union members and for  threats and  intimidation  of  workers  for   joining   the   union.   In   its Memorandum of Claim filed at the Industrial Court on 20^th  August, 2013, the responded contended that on 26^th  October, 2012, it recruited   workers of the appellant and forwarded a Recognition Agreement to the appellant for purposes of signing in order to formalize their relationship; that the appellant neither responded to nor acknowledged receipt of the Recognition Agreement; that the respondent sent several reminders to the appellant but the appellant did not respond  to  any  of  its  letters;  that  the  appellant’s  conduct  prompted  the respondent to report a Trade Dispute to the Minister for Labour on 14^th December, 2012; that thereafter, the Ministry of Labour appointed a Conciliator vide a letter dated 18^th  December, 2012; that after several meetings with the Conciliator, it was agreed that the Conciliator visit the factory to ascertain union membership and prepare its report; that by the time the Conciliator released its report to the parties on 8^th May, 2013, the respondent had recruited 78 employees out of   132 employees of the appellant and this translated to 59%    of the employees which number was above the required simple majority; that at the time of filing the claim, the respondent had recruited a total of  146 employees out of  230 employees of the appellant which  was equivalent to 63% and that this was above the simple majority requirement for signing of a Recognition Agreement.

The respondent contended that the appellant had refused to sign the Recognition Agreement delivered to them on 1^st  November, 2012; that they refused to implement deductions of union dues from the employees who had willingly become members of the respondent and that the appellants had instead resorted to threatening and intimidating employees to resign from the union and even dismissing some of them. The respondents urged the court to allow their claim and grant the orders sought by directing the appellant to recognize the union which by then had a total of 146 union membership representing 63% of the appellant’s employees; by directing the appellant to implement deductions of union dues from the date contained in the check off system forms submitted to the appellant; by declaring that the appellants had committed an offence under Section 50(10) by breaching Section 50(8) of the Labour Relations Act; by directing the appellant to stop intimidating workers for joining the union as joining the union was a constitutional right of the employees and finally, to find in favour of the respondents and condemn the appellants to pay costs of the suit.

In opposing the claim, the appellant filed written submissions on 7^th February, 2014 denying the respondent’s claim alleging that the persons named in the list submitted to them by the respondents were outsourced employees of Norgen  Enterprises  Limited  and  Liberty  Associates;  that  contrary  to  their assertion, the respondents had not recruited a simple majority of its employees and that only 36 employees out of its total workforce of 280 employees had joined the union. The appellant stated that “out of a total workforce of 280 employees, 170 were outsourced employees of Liberty Associates; that out of the remaining 110 employees who fall under the respondent 22 are management and not unionisable  and  that  all  the  remaining  88  employees  who  are  under the respondent, none are members of the union, 36 of the employees who fall under Liberty Associates are members”. The appellant contended further that  the respondent could only seek recognition after clearly demonstrating that they have recruited a simple majority of its employees. They urged the court to dismiss the respondent’s claim with costs.

The dispute between the parties was heard by  Wasilwa, J who in a judgment delivered on 14^th March, 2014 stated:

“I find that claimants are entitled to prayers sought and I order as follows:

1. The respondent shall forthwith recognize the claimant union and enter negotiations leading to signing of a Collective Bargaining Agreement within 60 days.

2. The respondents shall forthwith and in any case not less than 30 days from the date of this judgment remit trade union dues to the claimants.

3. The respondent shall forthwith cease to intimidate or otherwise deal with the employees unfairly with the aim of defeating their right to freedom of Association.

4. The respondents shall meet costs of this suit”.

Being dissatisfied with the findings of the learned judge, the appellant filed a Memorandum of Appeal on 26^th January, 2017 in which they faulted the trial judge for failing to find that the respondent had failed to demonstrate that they had recruited a simple majority of the appellant’s employees to warrant the appellant  to sign a recognition  agreement;  for failing to consider the documentary evidence contained in the appellant’s Memorandum in response to the Respondent’s Memorandum  of Claim;  for failing to find that the appellant had tendered sufficient evidence before the trial court with regard to the outsourced employees;  for failing to consider the content and import of the appellant’s submissions; for erroneously making a finding that the outsourcing agreement between the appellant and the outsourcing companies was a sham; for erroneously making a finding that the appellant had been intimidating or otherwise dealing with its employees unfairly without sufficient evidence to prove the same and finally, for failing to consider the weighty defence evidence.

The appeal came up for virtual hearing on 9^th June, 2020. Mr. Wilberforce Wagonda,  learned  counsel  appeared  for  the  appellant  whilst  Mr. Nyabena, learned  counsel  appeared  for  the  respondent.  Mr.  Wagonda  relied  on  the appellant’s submissions dated 28th May, 2020 which were filed online. Counsel contended that the respondent failed to demonstrate that it had recruited a simple majority of 51% of unionisable employees for the appellant to sign the recognition agreement. Further, that in computing its figures the appellant had included  outsourced  employees  of  Norgen  Enterprises  Limited  and  Liberty Associates,  these  two  being  manpower  and/or  employment agencies.  The appellant faulted the judge for finding that the outsourcing agreements between it and Norgen Enterprises Limited and Liberty Associates was a sham, and finally urged that there was no evidence that the appellant had sought  either through threats or otherwise, to dissuade its employees from joining the union.

On behalf of the respondent, learned counsel Mr. Nyabena relied on their submissions filed online on 8^th June, 2020. Counsel pointed out that as the decree therein  had  been  satisfied,  the  trade  union  dues  have  been  deducted  and submitted, the Collective Bargaining Agreement (CBA) renegotiated – covering terms and conditions of service, and new rights created with the employees, then the appeal is of academic value; that the judge was correct in finding that a simple majority had been attained by the recruitment of 156 out of a total workforce of 230, this being 67.8% of the unionisable employees of the appellant; that coercing members to withdraw from the union and the purported transfer of its employees as outsourced employees came after attainment of the simple majority and hence was inconsequential; that the purported outsourcing was a sham and finally, that the introduction of the Norgen Enterprises Limited and Liberty Associates was a vain attempt to derail the signing of the recognition agreement.

In a brief rejoinder Mr. Wagondo contended that the denial of stay of execution sought by the appellant did not render the appeal academic as in any event, the sums paid to the union is recoverable.

We have considered the record, the rival oral and written submissions, the authorities cited and the law.

The appeal before us is a first appeal. Our mandate as a first appellate court is as set out in Selle vs. Associated Motor Boat Co. of Kenya & others [1968] EA 123 wherein it was stated:

“I) an appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of the demeanor of a witness is inconsistent with the evidence generally.

An appeal to this court from a trial by the High Court is by way of a re-trial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.

In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif –vs- Ali Mohamed Sholan (1955)22 EACA 270”.

We consider the facts of this matter to be fairly straight forward.  The appellant’s position is that the respondent had not recruited a simple majority of its employees to warrant the signing of a recognition agreement. This would be in line with Section 54 of the Labour and Relations Act, 2007 which provides:

“An employee including an employee 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  respondent  had  recruited  a  total  of  156  members  from  a  total workforce  of  230  employees  of  the  appellant,  thus  representing  67.8%  of unionisable employees. This was clearly above the simple majority.  Further, there being no proof that the employees had written contracts of employment with  Norgen  Enterprises  Limited  and   Liberty  Associates,  the    appellant’s contention that these were outsourced employees was mischievous and we echo the words of the trial judge that “………the alleged outsourcing is a sham meant to defeat the quest for recognition”

In our view, this appeal is devoid of merit. We also hasten to add that as pointed out by Mr. Nyabena for the respondent, the recognition agreement having been signed by the appellant, this appeal is merely academic.