Brookside loses bid to lock out union from recruiting workers

Milk Processing company Brookside Dairy has lost, for a second time, a case seeking to lock out its employees from joining the Bakery, Confectionary Food Manufacturing and Allied Workers Union.

Brookside Dairy

The dairy company received a letter from the union confirming it had recruited a simple majority of its employees as members. The union sought to conclude a recognition agreement after which the firm would submit monthly membership deductions from its members to the union.

Brookside Dairy, however, alleged that it had found errors and inconsistencies in the union’s letter and thus it challenged the authenticity of the claim at the Industrial Court.

The Industrial Court, currently renamed Employment and Labour Relations Court, however found that the union had indeed recruited the company’s employees and its action was justified.

The Labour court gave the company 30 days to conclude the recognition agreement and deduct membership fees as had earlier been requested by Bakery, Confectionary Food Manufacturing and Allied Workers Union.

The company, however, appealed against the Industrial Court judgement and brought the matter before Justices Isaac Lenaola, Mumbi Ngugi and George Odunga. It also cited that it had been denied its right to fair labour practices, freedom of contract and freedom of association.

However the judges ruled that the High Court had no powers to review the merits applied by the labour court in making its judgement and noted that the said court enjoyed equal status as the High Court.

“Since there was no appeal provided for with respect to such decisions, it is evident that the intention of the legislature was that no appeal would lie on the merits of the Court’s decisions. As we have indicated elsewhere in this judgement, the attempt to create an appellate process through the provisions of section 27(1) of the Labour Institutions Act in 2007 was held to be unconstitutional. It is not therefore within our mandate to enquire into what evidence the Industrial Court considered, or failed to,” the ruling by the judges read in part.

In the case, the company had also alleged that the Labour court had also failed to listen to its side of the story.

But Justices Lenaola, Ngugi and Odunga found that the allegation had no basis, as it had been allowed to call one witness who testified on its behalf and was also cross examined.

“For the sake of clarity and completeness, we must state that we have read the judgement of the Industrial Court and noted that contrary to the petitioner’s assertion, it did consider the petitioner’s evidence,” the ruling by the High Court judges read in part, adding that they could not rule against the earlier decision.

“That being the case, we cannot issue any orders in favour of the petitioner, (Brookside) for such orders would depend on a merit review of the decision of the Industrial Court, and would be dependent on our making a finding that the Court erred in its conclusion about the union’s recruitment,” the judges ruled.