[2018] KEELRC 287 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 1973 OF 2013

(Before Hon. Justice Hellen S. Wasilwa on 20th December, 2018)

CHARLES OKWANY......................................................1ST CLAIMANT

JOSEPHINE AYUMA.....................................................2ND CLAIMANT

EMMANUEL OLIVER ANGAGA................................3RD CLAIMANT

MILLYCENT ANYUMBA..............................................4TH CLAIMANT

WYCLIFFEE WAWIRE..................................................5TH CLAIMANT

MARTIN LUTALALA.....................................................6TH CLAIMANT

PHYLIS CHEBICHY.......................................................7TH CLAIMANT

SYLVESTER BARASA...................................................8TH CLAIMANT

DAVID ORIMBA..............................................................9TH CLAIMANT

RUFINAS OKAKA.........................................................10TH CLAIMANT

PHINEAS KOMBE.........................................................11TH CLAIMANT

-VERSUS-

CORN PRODUCTS KENYA LIMITED...........................RESPONDENT

JUDGEMENT

1. The Claimants herein filed their Memorandum of Claim on 6/12/2013 through the firm of Osoro Omwoyo and Company Advocates alleging unfair, illegal, wrongful and unlawful termination of their services on accounts of redundancy and failure by the Respondent to pay their terminal dues.

2. The Claimants’ case is that they were employed by the Respondent on diverse dates between 1985 and 2010 as Assistant Production Managers. On 23/7/2012, the Respondent terminated their services on account of redundancy.

3. The claim by the Claimants is for a proper and accountable tabulation of their benefits as enumerated in the claim. The Claimants called 1 witness Charles Okwanyi who indicated that he had authority to give evidence on behalf of the other Claimants.

4. The Claimant admitted he was a member of the pension fund and he received his pension and what he now seeks is gratuity of the 3 years 1990 to 1993 before he joined the pension.

5. The Respondent never offered any evidence after the close of the Claimants’ case. They however filed their submissions.

6. I have considered the evidence and submissions filed. The issues for determination are as follows:-

1) Whether the Claimants’ termination was unfair and unlawful.

2) Whether the Claimants are entitled to the remedies sought.

3) Whether the Claimants are entitled to the remedies sought.

7. On the first issue, the Claimants exhibited documents showing that on 23/7/2012, the redundancy notice was served upon each Claimant.

8. The termination letters were issued 1 month later vide a letter dated 23. 8.2012. It is therefore apparent that the Claimants were given due notice of the intended redundancy.

9. The letter of termination also set out the terminal dues to be paid out to the Claimants including leave and severance pay. The Claimants were finally paid less amounts owed if any to the bank in loans.

10. They also signed a released discharge indicating they had no claim against the Respondents.

11. Section 40(1) of Employment Act states as follows:-

(1)“An employer shall not terminate a contract of service on account of redundancy unless the employer complies with the following conditions:-

(a) Where the employee is a member of a trade union, the employer notifies the union to which the employee is a member and the labour officer in charge of the area where the employee is employed of the reasons for, and the extent of, the intended redundancy not less than a month prior to the date of the intended date of termination on account of redundancy;

(b) Where an employee is not a member of a trade union, the employer notifies the employee personally in writing and the labour officer;

(c) The employer has, in the selection of employees to be declared redundant had due regard to seniority in time and to the skill, ability and reliability of each employee of the particular class of employees affected by the redundancy;

(d) Where there is in existence a collective agreement between an employer and a trade union setting out terminal benefits payable upon redundancy; the employer has not placed the employee at a disadvantage for being or not being a member of the trade union;

(e) The employer has where leave is due to an employee who is declared redundant, paid off the leave in cash;

(f) The employer has paid an employee declared redundant not less than one month’s notice or one month’s wages in lieu of notice; and

(g) The employer has paid to an employee declared redundant severance pay at the rate of not less than fifteen days pay for each completed year of service.

12. In relation to this provision of the law, I note that the Claimants were given due notice, they were paid their leave and severance pay. The assertion by the Claimants that the redundancy was unfair and unjustified is therefore not correct. The prayer for compensation for unfair termination is therefore unfounded and I find the redundancy was carried out following the proper procedure.

13. In terms of the terminal dues paid out, the Claimants have stated that their dues were not properly calculated.

14. The Claimants have asked this Court to find that the severance pay was to be calculated using a formula that is not clear. Under Section 40 of Employment Act (supra) severance pay is usually calculated at 15 days salary for each year worked. What the Claimants want is a calculation of salary multiplied by 12 x number of years worked minus what was paid out. This is a formula unknown and alien to this process and I find that the prayer for recalculation of severance pay is not warranted.

15. The Claimants had also sought to be paid gratuity and money deducted and paid to the bank as outstanding lean.

16. Section 35(6) of Employment Act states that employees who are members of a pension scheme, NSSF, or a service pay scheme established under a CBA are not entitled to payment of service pay.

17. The Claimants herein were not only members of a pension scheme but also of NSSF. Their quest for gratuity over and above the pension is therefore not warranted.

18. In the circumstances, I find that the Claimants’ case is not merited and the same is dismissed accordingly. Each Party will pay its own costs.

Dated and delivered in open Court this 20th day of December, 2018.

HON. LADY JUSTICE HELLEN WASILWA

JUDGE

In the presence of

Murugu for Respondent – Present

Claimant in Person – Present