Aga Khan University Hospital v Kenya Private Universities Workers Union (Civil Appeal 372 of 2019) [2024] KECA 1950 (KLR) (20 December 2024) (Judgment)
Neutral citation:
[2024] KECA 1950 (KLR)
Republic of Kenya
Civil Appeal 372 of 2019
MSA Makhandia, AK Murgor & S ole Kantai, JJA
December 20, 2024
Between
Aga Khan University Hospital
Appellant
and
Kenya Private Universities Workers Union
Respondent
(Being an appeal from the ruling of Employment and Labour Relations Court at Nairobi, (Ongaya, J.) dated 31st May 2019 in ELRC Case No. 169 of 2019
Cause 169 of 2019
)
Judgment
1.This is an appeal by Aga Khan University Hospital (“the appellant”) against the ruling and order of Ongaya, J. in Nairobi Employment and Labour Relations Court (“ELRC”) Case No. 169 of 2019 delivered in Nairobi on 31st May 2020. By the said ruling and order, the trial court dismissed the appellant’s preliminary objection with costs.
2.The facts giving rise to this appeal are that Dianah Nyanga Owino (“the grievant”) was employed by the appellant on 1st October 2014 as an ultra sound sonographer and deployed to the appellant's Kitengela Outreach facility. She thereafter joined Kenya Private Universities Workers Union (“the respondent”), as a member. On 16th May 2018, she was suspended from employment which was followed by a notice to show cause letter dated 28th May 2018. All these actions were pegged on the alleged poor performance of work by the grievant. The grievant was thereafter invited to a disciplinary hearing on 6th June 2018. Feeling overwhelmed and frustrated by the appellant’s actions, the grievant resigned from her employment on 31st May 2018, having given the required one month's notice. However, her resignation was not accepted by the appellant who on 5th June 2018, through its Human Resource Manager, demanded that she respond to the show cause letter and attend the disciplinary hearing which she did.
3.On 10th July 2018, she received a letter terminating her employment with effect from 30th June 2018. She was advised to appeal within 7 days which she did on the same day. The appeal was heard on 16th August 2018 in her presence and subsequently on 28th August 2018, the appeal was dismissed. On 8th September 2018, she wrote to the appellant indicating that she would henceforth be represented by the respondent in the dispute. The respondent subsequently wrote a letter to the appellant proposing a meeting to discuss the summary dismissal of its member. By a letter of 20th September 2018, the appellant declined to meet the respondent citing the lack of recognition agreement between them.
4.The respondent then reported a Trade Dispute to the Cabinet Secretary for Labour Social Security Services, who in turn appointed a Conciliator, Mr. J. M. Kiraguri. The conciliator invited parties for a conciliation meeting to resolve the dispute of the “unfair termination of employment of Madam Dianah Owino”. The appellant indicated to the conciliator its unwillingness to attend conciliation as it did not recognize the respondent as a union in the absence of a recognition agreement between them. On this account, the Conciliator issued a certificate of unresolved dispute.
5.The respondent then filed its claim in ELRC asserting through the memorandum of claim dated 14th March 2019, unfair, un- procedural, unlawful, and constructive termination of the employment contract by the appellant and its member, the grievant.
6.In response, the appellant filed a notice of preliminary objection (“PO”) through Messrs O & M Law LLP. on the grounds, that the respondent lacked locus standi to sue on behalf of its alleged member pursuant to section 54 of the Labour Relations Act, that the appellant and the respondent were strangers to each other as they did not have a recognition agreement in place. It therefore prayed that the suit be struck out with costs.
7.The respondents in opposition to the PO, stated that Article 41 (2)(c) of the Constitution and section 4 of the Labour Relations Act provide for the right of an employee to join a trade union of his or her own choice and to participate in activities of the trade union without reference to a recognition agreement or collective bargaining agreement. On this basis, the respondent asserted it had the necessary locus standi to prosecute the suit.
8.Upon plenary hearing of the PO, the trial court found thus:
9.Being aggrieved by the said ruling and order, the appellant filed the instant appeal on four grounds to wit; that the learned Judge erred in law by failing to find that: a union without a Recognition Agreement does not have the locus standi to represent its member under section 2 as read with section 54 of the Labour Relations Act; to appreciate the nature of a Recognition Agreement under section 2 as read with section 54 of the Labour Relations Act; considering extraneous factors such as that the judges of the ELRC had since moved away from the position that the Recognition Agreement was necessary before representation by a trade union and lastly, that the learned Judge erred in law and fact by considering that the Grievant was an employee of the Hospital and not the University.
10.The appeal was canvased by way of written submissions that both parties had filed. None of the parties, however, showed up when the appeal came up for plenary hearing on our virtual platform on 29thJuly 2024. The court nonetheless opted to rely solely on the written submissions on record, craft, and deliver the judgment.
11.The appellant condensed its grounds of appeal into two; whether the trial court erred by not finding that a union without a recognition agreement lacks locus standi to represent an employee under sections 2 and 54 of the Labour Relations Act and whether the trial court failed to appreciate the nature of a recognition agreement, which establishes the tripartite relationship between a trade union, the employee and the employer. The appellant maintained that there was no evidence of a recognition agreement between the respondent and the appellant and that the respondent had only recruited the grievant. The appellant contended that a recognition agreement is necessary to bring the union into the relationship between the employer and the employee. Without it, the respondent union is an intruder and a third-party bystander, which the employer cannot engage with. It cited several cases among them, Transport Workers Union (K) v Ideal Logistics Limited [2012] eKLR; Banking, Insurance and Finance Union (Kenya) v Maisha Bora Sacco Society Limited [2016] eKLR; Kenya Union of Employees of Voluntary and Charitable Organisations [KUEVACO] v Board of Governors, Maina Wanjigi Secondary School [2015] eKLR; Communication Workers' Union v Safaricom Limited [2014] eKLR; and Kenya Shoe & Workers Union v Modern Soap Factory Ltd [2017] eKLR in support of the proposition.
12.On extraneous factors, the appellant submitted that the trial court considered extraneous circumstances in impeaching the authorities cited by the appellant. That the law has not yet changed to alter the tripartite nature in which labour relations are conducted. To allow the union to represent any employee, outside the framework of the Labour Relations Act will be a recipe for chaos in labour relations as membership ought not to be conducted in a carte blanche manner. Additionally, it was submitted that there was a resignation letter from the grievant dated 31st May 2018 which demonstrated that she had ceased to be a member of the respondent and by dint of this fact, the respondent had no locus standi to institute a suit in its own name or represent the grievant.
13.It was further submitted that the grievant was employed by the hospital and not the appellant. That the respondent was therefore not a sector union of the appellant. The grievant was an ultrasound sonographer in the hospital and not a staff member of the appellant. The appellant and the hospital were two separate legal entities. Relying on the cases of Benson Ngoma Mtungu & 6 Others v Registrar of Trade Unions & Another [2018] eKLR and Charles Waweru Kimani & 9 Others v Kenya Kazi Services Limited; Kenya Private Universities Workers Union & 2 Others (Interested Parties) [2019] eKLR, the appellant submitted that in order to forestall chaos in commerce and industry; the right to join a trade union and the corollary freedom of association should be exercised in the manner prescribed in the enabling legislation, the Labour Relations Act, 2007. Additionally, even though unionization is protected under the Bill of Rights in Articles 36 and 41 of the Constitution of Kenya, the exercise of the right must be within the corners of the enabling provisions of law. The respondent intends to create confusion and disharmony in the sector by instituting frivolous cases that may give rise to perilous precedents.
14.On its part, the respondent submitted that it is true that the respondent and the appellant did not have a recognition agreement. That contrary to the appellant's assertions, the employee did not cease to be a member of the respondent upon her resignation and or termination of her employment since her resignation was not accepted. Additionally, the respondent filed the case because she challenged the lawfulness and or fairness of her dismissal. The issue in dispute was unfair termination and therefore the employee was still a member of the respondent until the Court finds that she was lawfully and fairly terminated and or dismissed. The respondent further submitted that the appellant’s contention that the respondent had no locus standi is a fallacy as recognition and collective bargaining agreements are not the determinants of locus standi. It is the membership of a union that gives the union locus standi to represent an employee. Further, the obligation of the Trade Union to represent its Members in and out of Court, and the right of the members to representation, in work-related grievances and disputes, flows from the membership of the Employee to the Trade Union. Relying on the cases of Kenya Private Universities Workers Union vs Kenya Methodist University [2017] eKLR and Kenya Shipping, Clearing and Warehouses Workers Union v African Management & ID Logistics Limited [2016] eKLR, the respondent submitted that there is nothing in section 54(2) & (3) of the Labour Relations Act which would serve to restrict or limit the locus standi, allowed to a trade union from instituting or representing its members in legal proceedings where it can demonstrate that it is agitating on behalf of its member(s) even before recognition agreement. In a long line of judicial pronouncements, the Employment and Labour Relations Judges had come out and declared that Trade Unions have locus standi to institute suits on behalf of their members, irrespective of recognition. That membership grants employees the right to the Trade Union’s legal representation in court, while recognition allows the Union to engage in collective bargaining agreements with employers for the benefit of members and all unionizable employees.
15.The cases cited, such as of Kenya Hotels & Allied Workers Union v Bidnood Suits Hotel Limited [2019] eKLR; Communication Workers Union v Safaricom Ltd [2014] eKLR, Kenya County Government Workers Union v County Government of Machakos & Another [2017] eKLR; Mukisa Biscuits Manufacturing Co. Ltd v Westend Distributors Ltd [1969] EA and Kenya Shoe Workers Union v Modern Soap Factory Ltd [2017] eKLR, highlight that the primary statutory reason for granting recognition to a trade union is to facilitate collective bargaining.
16.Finally, it was submitted that issues regarding the grievant employment location and recognition agreements with other unions were not before the ELRC and should not be considered in this appeal.
17.We have considered the record of appeal, the rival submissions, and the principles of law applicable. In our view, the only issue that falls for our determination is whether a union without a recognition agreement lacks locus standi to represent its member in court under sections 2 and 54 of the Labor Relations Act. Locus standi signifies a right to be heard, a person must have sufficiency of interest to sustain his standing to sue in a court of law. Therefore, locus standi means the right to appear before and be heard in a court of law. Without it, even when a party has a meritorious case, he cannot be heard. Locus standi is so important that in its absence, the party has no basis to claim anything before the court. See the Supreme Court case of Okoiti & Another v Attorney General & Another (Petition No. 29 of 2020) [2021] KESC 28 (KLR).
18.Sections 2 and 54 of the Labour Relations Act, provides for recognition as follows:
19.Therefore, section 2 of the Labour Relations Act allows all willing employees to join a Trade Union of their choice and section 54 (1) obligates an employer to recognize a trade union for purposes of negotiating a Collective Bargaining Agreement (CBA), which becomes binding on both parties. In this case, parties have conceded that there was no recognition agreement between them as they have not signed a recognition agreement. The evidence of lack of a recognition agreement is not disputed at all.
20.What then we have to determine is whether without the said recognition agreement the respondent had locus standi to represent the grievant.
21.This Court in the case of Modern Soap Factory v Kenya Shoe and Leather Workers Union (Civil Appeal No 37 of 2019) held as follows:
22.Similarly, the Supreme Court in Teachers Service Commission v Kenya National Union of Teachers & 3 Others [2015] eKLR affirmed that the lack of a recognition agreement does not strip a union of its locus standi to represent its members. The court underscored the importance of protecting workers’ rights to representation and collective bargaining. The court emphasized the fundamental nature of workers’ rights to representation and collective bargaining, which are enshrined in the Constitution and international labor standards. The judgment highlighted that these rights are essential for the protection and promotion of workers’ interests and cannot be undermined by the lack of a formal recognition agreement.
23.The Supreme Court further noted that the right to representation is a cornerstone of labour relations and is crucial for ensuring that workers have a voice in negotiations and disputes with their employers. The court’s decision reinforced the principle that unions play a vital role in advocating for workers’ rights and that their ability to represent their members should not be hindered by procedural technicalities such as the absence of a recognition agreement.
24.We hasten to add that indeed recognition agreements are crucial in establishing the framework for industrial relations, including collective bargaining and representation. However, the absence of such an agreement does not invalidate the union’s ability to act on behalf of its members. This Court in Kenya Plantation and Agricultural Workers Union v Mununga Leaf Base [2013] eKLR clarified that while recognition agreements formalize the relationship between the union, employees, and employers, they are not the sole basis for a union’s authority to represent its members.
25.The Supreme Court in Kenya National Union of Nurses v Council of Governors & 5 Others [2016] eKLR, further reinforced that the essence of a recognition agreement is to facilitate structured negotiations and consultations, but it does not preclude a union from representing its members in the absence of such an agreement.
26.The case law above demonstrate that the trial court did not err in its findings regarding the union’s locus standi and the nature of recognition agreements. In the final analysis, we are satisfied that the appeal is devoid of merit and is accordingly dismissed with costs to the respondent.
DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER 2024.ASIKE-MAKHANDIA.....................................JUDGE OF APPEALA. K. MURGOR.....................................JUDGE OF APPEAL.....................................S. ole KANTAI.....................................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR