[2004] KEELRC 5 (KLR)

IN THE INDUSTRIAL COURT OF KENYA

AT NAIROBI.

(Before: Charles P. Chemmuttut, J.,

J.M. Kilonzo & A.B. Ongaro.)

CAUSE NO. 24 OF 2004.

KENYA ENGINEERING WORKERS’ UNION…….........……………..Claimants.

v.

JITAN STEEL LTD. …………………………...………………………..Respondents.

Issues in Dispute:-

Terms and conditions of service, i.e:-

1. Basic Minimum Wages.

2. General Wage Increase.

3. Leave Travelling Allowance.

4. House Allowance.

5. Sick Leave.

6. Termination of Service.

7. Retirement Benefits.

8. Death of an employee.

Joseph A. N Omolo, Industrial Relations Officer, for the Claimants

(hereinafter called the Union).

No appearance for the Respondents (hereinafter called the Company).

A W A R D.

This dispute was referred to the Court for consideration and determination by the Minister for Labour on 23rd March, 2004, in exercise of the powers vested in him by Section 8 of the Trade Disputes Act, Cap. 234, Laws of Kenya (which is hereinafter referred to as the Act). The reference, together with the statutory certificate from the Labour Commissioner under Section 14(9)(e) of the Act, were received by the Court on 30th March, 2004, and the dispute was listed for mention on 15th April, 2004. The parties were accordingly notified through their addresses on the record to attend. On the said date, Mr. Fredrick Odindo appeared for the Union but there was no appearance for the Company and no reasons were given for their absence. In the circumstanced, the dispute was again listed for a further mention on 29th April 2004, and the parties were also notified to attend. On this date, Mr. Joseph A.N. Omolo appeared for the Union but again there was no appearance for the Company. Notwithstanding the absence of the Company’s representative, the parties were directed to submit or file their respective written memoranda or statements on 31st May and 30th June, 2004, and the dispute was fixed for hearing on 20th July, 2004. However, on 18th May, 2004, the dispute was brought forward for a further mention on 27th May, 2004 to fix another suitable or convenient date for hearing, and the parties were notified to attend. Mr. Omolo appeared for the Union, but again there was no appearance for the Company. In spite of the latter’s absence once more, the dispute was rescheduled for hearing on 11th August, 2004, and the parties were directed to appear. The Company was served, through Securicor Security Services Kenya Ltd., on 3rd June, 2004; but it (Company) neither filed its reply statement nor appeared in Court on the said date, i.e 11th August, 2004, and no reasons were given for its default. In the circumstances, the dispute was heard ex-parte.

In his brief submission, Mr. Omolo urged that in the absence of the Company’s reply statement and non-appearance, the Court be pleased to award in terms of the Union’s demands as follows:-

“1. Basic Minimum Wages.

The present basic minimum salaries to go up by

(i) 1st year– 25%

(ii) 2nd year - 25%

Group 1: Unskilled Labourers

1. 6.2000 - 1. 6.2001

General labourers, office Messenger ) 3440 4300

Boilerman, Trolleyman, Tongman )

Billetman, cooler banding )

Polisherman, Tea maker )

Group II: semiskilled labourers

(a) Day watchman, Tongman ) 4185 5231

Machine attendant )

(b) Polisherman )

(c) Trolleyman )

(d) Drivermate )

Group III:- Upgraded Artisans

(a) Night watchman, towman ) 4981 6226

(b) Machine operator, Busherman )

(c) Trolleyman )

Group IV

(a) Receptionist, telephone operator ) shs.4981/= shs.6226/=

(b) Lab technician, copy typist )

Group V

Glass cutter ) shs.5511/= shs.6889/=

Group VI Grade Artisan T.T.C. III

(a) Fitters, welders, turners ) shs.6173/= shs.7717/=

Electrician, light van driver )

(b) Artisan Grade II ) shs.6526/= shs.8157/=

medium sized vehicle

(c) Artisan Grade I

Heavy commercial vehicle ) shs.7715/= shs.9643/=

(d) Special Grade

(a) Maintenance ) shs.9370/= shs.11,171/=

(b) Electrician )

2. General Wage Increase.

Employees in the service of the company as at the effectivedate of the agreement shall be granted increments as follows:

(i) With effect from 1st June 2000 - 50%

(ii) With effect from 1st June 2001 – 50% on top of theirwages to cover the next succeeding twelve months.

3. Leave Traveling Allowance.

When proceeding on annual paid leave, an employee shall be entitled to Kshs. 2000 for the first year and Kshs. 2500/= for the second year.

4. House Allowance.

(a) First year Kshs.2100/=

(b) Second year Kshs.3150/=

(c) Those employees who has been housed by the company,houses to be repaired, put electricity, water and buildmore toilets plus bathrooms.

5. Sick Leave. An employee who is unable to carry out his duties by reason of sickness, shall be entitled in any period of twelve months to full pay for a period of 90 days and half pay for a further period of 90 days in any sick year. Provided that the certificate testifying to the need for such absence.

6. Termination of Service

(i) 1 – 4 years- 2 months notice or pay in lieu.

(ii) 5 – 10 years- 21/2months notice or pay in lieu.

(iii) Over 10 years- 3 months notice or pay in lieu.

7. Retirement Benefits.

Retirement benefits for long service employees shall

be calculated as follows:-

(i) 1 to 5 years- 40 days per each completed year.

(ii) 6 to 10 years- 60 days per each completed year.

(iii) Above 10 years- 90 days per each completed year.

8. Death of an employee.

(i) The employer shall provide coffin and transport for thedeceased and his belongings or Kshs.25,000/=.

(ii) ……………………………………………………………………………..

(iii) ……………………………………………………………………………..

(iv) ……………………………………………………………………………..”

Before I part with this case, I wish to observe that an ex-parte proceeding is not any new concept of law. If the Court finds, as in this case, that the party against whom certain proceedings have been initiated, and he is notified to file his reply statement and appear, but avoids or fails to do so after repeated opportunities are given to him, the proceedings have to be conducted in his absence or ex-parte,and in such a case it would not be a violation of the principles of natural justice. At any rate, the party cannot be allowed to take advantage of his own wilful act to avoid service of the notice or the date of the hearing of the dispute. I am fortified in this view of the matter by the case of Supreme Court of India, Lakshmi Devi Sugar Mills Ltd. (1959) I LL.J. 17 at page 24, in which it was observed that:-

“if full and free opportunity was given to the respondents to present themselves at the enquiry and defend themselves, it could not be said that the enquiry was anything but fair”.

In this case, full and free opportunity was given to the Company to file its reply statement and to appear with a view to defending itself, but it did not bother. It could, therefore, not be said that the hearing of the case ex-parte was anything but fair, and in no circumstances can it be said that the hearing of the dispute ex-parte was mala fide or the principles of natural justice were violated. Thus, the Court was at liberty to come to its own conclusions in regard to the culpability of the Company.

Accordingly, I award in terms of the Union’s demands hereinabove.

On consultation, both members of the Court concur with this decision.

DATED and delivered at Nairobi this 19th day of November, 2004.

Charles P. Chemmuttut, MBS,

JUDGE