[2018] KEELRC 993 (KLR)
The court found that the conciliation agreement entered into between the claimant union and the respondent, which sought to deprive the grievants of gratuity benefits under clause 25 of the CBA, constituted an unlawful attempt to relinquish or vary a more favourable term to the detriment of the employees. Section...
Source-derived case information.
- Citation
- [2018] KEELRC 993 (KLR)
- Parties
- Applicant: Kenya Chemicals and Allied Workers Union; Respondent: African Diatomite Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 850 of 2013
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed in part; conciliation agreement set aside to the extent it deprived grievants of gratuity; payment of redundancy and gratuity benefits ordered.
- Judges
- NJ Abuodha
- Legal Topics
- Collective Bargaining Agreement, Redundancy Benefits, Gratuity Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kenya Chemicals and Allied Workers Union
Applicant
African Diatomite Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the conciliation agreement entered into on 7th June, 2012 validly deprived the grievants of gratuity benefits under clause 25 of the CBA.
Ratio Decidendi
The court found that the conciliation agreement entered into between the claimant union and the respondent, which sought to deprive the grievants of gratuity benefits under clause 25 of the CBA, constituted an unlawful attempt to relinquish or vary a more favourable term to the detriment of the employees. Section 3(6) of the Employment Act prohibits any agreement that seeks to reduce the minimum terms and conditions of employment. Therefore, the conciliation agreement was null and void to the extent that it deprived the grievants of their gratuity entitlement. The court ordered that, in addition to redundancy benefits under clause 22 of the CBA, the grievants must be paid their clause 25...
Court Disposition
Claim allowed in part; conciliation agreement set aside to the extent it deprived grievants of gratuity; payment of redundancy and gratuity benefits ordered.
Orders
- The conciliation agreement entered into on 7th June, 2012 is set aside to the extent that it deprived the grievants of gratuity benefits under clause 25 of the CBA.
- The grievants shall be paid their redundancy benefits under clause 22 of the CBA.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF
KENYA AT NAIROBI
CAUSE NO 850 OF 2013
KENYA CHEMICALS AND ALLIED WORKERS UNION.......CLAIMANT
VERSUS
AFRICAN DIATOMITE LIMITED..........................................RESPONDENT
JUDGEMENT
1. The claimant union sought the order of the court to set aside the conciliation agreement entered into on 7th June, 2012 on the grounds that the same violated clauses 22 and 25 of the CBA hence invalid and improper.
2. According to the union, upon declaration of redundancy of their members they were to receive redundancy benefits as provided for under clause 22 of the CBA as well as gratuity as provided for under clause 25 of the CBA.
3. The respondent resisted the claim contending that the claimant and the respondent were involved and engaged in the resolution of the dispute from the onset and that the parties consequently entered into an agreement before the conciliator settling the dispute. According to the respondent therefore there existed no dispute between the claimant and the respondent. The respondent submitted further that the claimant could not resurrect the matter since it agreed through its representatives to sign an agreement thereby marking the matter as settled. The respondent sought reliance on the case of Mary Wairimu Gitonga & 29 Others Vs Ken Knit (Kenya) Ltd.
4. A CBA once concluded by the parties and registered by the court becomes part of the employee’s contract of employment. Section 3(6) of the Employment Act provides as follows:
“Subject to the provisions of this Act, the terms and conditions of employment set out in this Act shall constitute minimum terms and conditions of employment of an employee and any agreement to relinquish vary or amend the terms herein set shall be null and void”.
5. In the above context the conciliation agreement entered into between the claimant union and the respondent which sought to deprive the grievant of gratuity benefits constituted an agreement to relinquish or vary a more favourable term to the detriment of the claimants hence null and void to that extent.
6. The court therefore hereby orders that in addition to the redundancy benefits under clause 22 of the CBA, the grievants be paid their clause 25 dues as provided in the CBA.
7. It is so ordered.
Dated at Nairobi this 5th day of October, 2018
Abuodha Jorum Nelson
Judge
Delivered this 5th day of October, 2018
Abuodha Jorum Nelson
Judge
In the presence of:-
…………………………………………………………for the Claimant and
……………………………………………………………for the Respondent.