Court suspends order for KAA to pay workers' union Sh38 million

 

The Court of Appeal has suspended implementation of a Labour court order for the Kenya Airports Authority (KAA) to pay a trade union Sh38 million, which was deducted from employees but not remitted.

The judges said the judgment of July 28, 2020, in favour of the Kenya Aviation Workers Union (Kawu), should not be implemented until the appeal lodged by KAA is heard and determined.

Justices Hannah Okwengu, Gatembu Kairu and Agnes Murgor said KAA has an arguable appeal against the order issued by Labour court Judge Hellen Wasilwa.

They noted that the sum in dispute, Sh38,669,171 which was deducted between January 2016 and December 2019, is substantial and that there is nothing to show that the union will be in a position to refund the money if the appeal succeeds.

“The respondent (union) has admitted that it is in the process of executing the court order, and has gone so far as to seek to extract garnishee orders. It further asserts that in the event the appeal were to succeed, the KAA can seek a refund of the amount,” said the judges.

While urging the court to suspend execution of the judgment pending appeal, KAA said the union had already obtained orders of execution and was apprehensive that the execution was imminent.

Labour laws

Justice Wasilwa said the withholding of the monthly dues owed to the union was unlawful and against the provisions of the Labour Relations Act.

She directed the KAA to effect deduction of the monthly dues for the union members in job grade S5 with effect from January 2020,  and remit the same to the trade union.

She made the ruling after the union moved to court complaining that the withholding and non-remittance of the monthly dues had hampered its operations and caused it to face economic hardships for lack of funds.

The judge said KAA contravened Section 50(1) of the Labour Relations Act, which states that amounts deducted as union dues should be paid to the  bank account of the designated trade union or employers’ organisation within 10 days.

“The KAA failed to adhere to the law and it is suspect that it now claims to have refunded the dues collected yet the notice had not taken effect,” stated justice Wasilwa.

KAA said the amount sought by the union was inadvertently deducted from its employees’ salaries and had been reimbursed to the affected staff.

The court heard the affected employees lodged protest letters indicating they had never been union members, so the deductions lacked a lawful basis.

“Employees who had disputed union membership were reimbursed after the KAA verified their claims. Only 13 employees who had not renounced their union membership remained. Remitting the monies sought would be irregular and unlawful,” said Mr Anthony Njagi, the KAA's General Manager of Human Resources Development.

No proof by KAA

But justice Wasilwa found there was no proof that KAA refunded the affected employees and that the protest letters produced in court were not commissioned.

“The letters in respect of which they aver their employees complained of being deducted union dues are dated differently - 2017, 2019 and 2020.  It is not clear why the KAA held onto money deducted until 2020,” stated Justice Wasilwa.

Mr Njagi had also submitted that the authority had consistently remitted dues for all employees who had duly signed up as members of the union.

However, the court ruled that KAA’s contention was not supported by evidence and also flouted the provision of the Labour Relations Act.

The judge also noted that according to Section 48(7) of the Labour Relations Act, any resignation from a union takes effect a month after the notice is served on the employer.

The notices are to be forwarded to the union. 

COURTESY OF DAILY NATION