[2018] KEELRC 1411 (KLR)
The court found that the respondent, having failed to attend the hearing or substantiate its denials, left the claimant's evidence unchallenged. The only grievant who testified, Patrick Wanjohi, established that he was employed by the respondent and was terminated without reason or due process. The court accepted...
Source-derived case information.
- Citation
- [2018] KEELRC 1411 (KLR)
- Parties
- Applicant: Kenya Building Construction, Timber, Furniture & Allied Industries Employees Union; Respondent: M/S Cementers Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1306 of 2010
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- partly allowed
- Judges
- DI Wasike
- Legal Topics
- Unfair Termination, Trade Union Representation, Collective Bargaining Agreement, Terminal Dues, Pro Rata Leave
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Building Construction, Timber, Furniture & Allied Industries Employees Union
Applicant
M/S Cementers Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the respondent unfairly dismissed the grievant without observing the relevant industry order or CBA.
- 2 Whether the claimant union had locus standi to represent the grievant.
- 3 Whether the grievant was entitled to terminal dues and other benefits.
Ratio Decidendi
The court found that the respondent, having failed to attend the hearing or substantiate its denials, left the claimant's evidence unchallenged. The only grievant who testified, Patrick Wanjohi, established that he was employed by the respondent and was terminated without reason or due process. The court accepted his testimony and awarded him one month's pay in lieu of notice and pro rata leave, as provided under the relevant industry order. The claims of the other grievants were dismissed for want of prosecution, as they had withdrawn from the union and did not pursue their claims.
Court Disposition
partly allowed
Orders
- Judgment entered in favour of Patrick Wanjohi for KES 23,700 comprising one month's pay in lieu of notice and pro rata leave.
- The grievant shall have costs of the suit.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
EMLOYMENT AND LABOUR RELATONS COURT AT NAIROBI
CAUSE NO 1306 OF 2010
KENYA BUIDLING CONSTRUCTION, TIMBER,
FURNITURE & ALLIED INDUSTRIES EMPLOYEES UNION……………………CLAIMANT
VERSUS
M/S CEMENTERS LIMITED…………………………………............................…RESPONDENT
JUDGEMENT
1. By memorandum dated 7th October, 2010 the claimant union averred that the respondent dismissed the grievants from employment on different circumstances without observing the provisions of either Building Construction Industry Order L. N. 94 o 2004 or the parties CBA.
2. The claimants had endeavored to settle the matter through tripartite meetings which have failed due to lack of cooperation by the respondents. According to the grievants, the respondent has been unwilling to settle the issue even after different attempts were made by the claimants and the Labour officer.
3. In their memorandum of response the respondent denied that the claimant was the rightful trade union to represent the grievants. The respondent further denied that there was a recognition agreement between the parties. The respondent also denied employing the grievants. The respondent denied not paying the grievants their terminal dues and stated that the same were fully paid upon termination of services. The respondent further denied they were unwilling to settle the dispute.
4. This matter has been in court for a long time. Several mention dates were set for possible recording of settlement which did not materialize. The matter has also been set down for hearing severally but has been adjourned either due to non-appearance of the parties or with a view to explore settlement.
5. On 14th July, 2014 the hearing of this matter proceeded before Rika J in the absence of the respondent. Only one grievant Mr Patrick Wanjohi testified. He informed the court that he used to work for the respondent as a driver and that he was employed on 21st March, 2008 and left on 21st November, 2008. He was not told the reason for termination. He used to pick workers and drive them to sites.
6. On 6th December, 2017 when the matter came up for hearing before me, Mr Githinji for the claimant informed the court that only one grievant had testified and that the rest had withdrawn membership from the claimant union. The court therefore directed the claimant union files submissions in order for the court to conclude this old matter.
7. The matter as stated proceeded undefended. The respondent though filed a response which consisted of bare denials, did not attend court to defend the claim. The court inevitably has to rely on the evidence of the grievant who testified.
8. The court will therefore enter judgement in favour of Patrick Wanjohi as follows:
a. One month’s pay in lieu of notice 15,600
b. Pro rata leave 8,100
23,700
9. The grievant shall further have costs of the suit.
10. The rest of the claim is hereby dismissed for want of prosecution.
11. It is so ordered.
Dated at Nairobi this 20th day of July, 2018
Abuodha J. N.
Judge
Delivered at Nairobi this 20th day of July, 2018
Abuodha J. N.
Judge
In the presence of
…………………………………………Claimant
……………………………………..Respondent