[2018] KEELRC 1326 (KLR)

REPUBLIC OF KENYA

INDUSTRIAL COURT OF KENYA

AT NAIROBI

CAUSE NO. 347 OF 2013

(Before D. K. N. Marete)

KENYA ENGINEERING WORKERS UNION..........CLAIMANT

VERSUS

PRECISION ADVERTISEMENT LIMITED........RESPONDENT

JUDGEMENT

This matter was originated by way a Memorandum of Claim dated 27th February, 2013. The issue in dispute is therein cited as;

Termination of Messrs:

1. Mr. Shida Charo Mangi

2. Bosco Ndunda

This matter is not defended, or at all. The respondent did not even participate in these proceedings.

The claimant’s case is that the parties do not hold a cordial relationship. They have yet to sign a recognition agreement or negotiated Collective Bargaining Agreement inter partes.

The claimant’s further case is that this litigation is a search for a Recognition Agreement with a view to negotiating good terms and conditions for the unionisable employees of the respondent.

The claimant’s other case is that this dispute arose on 30th December, 2009 when both grievants were terminated for joining the claimant’s union. This termination of employment was without notice and was a consequence of the respondent’s unhappiness with them for joining the union. She withdrew their membership and they objected to this.

The claimant’s further case is that parties have been unable to resolve this issue. This is despite a reference to the Minister of Labour and his appointment of a receiver twice over. This is because the respondent was uncooperative and hostile and failed to honour the conciliator’s invitations to meetings for conciliation.

The claimant’s other submission is that Mr. Bosco Ndunda, grievant No.2 withdrew his dispute as he had secured alternative employment and feared that should the respondent get wind of this, she would interfere and cause his new employment to be dismissed by the new found employer. The dispute now only involves Mr. Shida Charo Mangi.

Again, the grievants employment was verbally terminated for joining the union which had claimed overtime and leave in the year 2008 – 2009 for Mr. Bosco Ndunda. The respondent thereon asked the grievants to sideline membership of the claimant union and were terminated from employment on refusal so to do.

The claimant’s further case is that the grievant was paid Kshs.4,500. 00 on termination. This took into consideration an amount of Kshs.4,000. 00 earlier taken as advance. He was not paid any salary in lieu of notice.

She claims as follows;

1. Notice pay in lieu of notice which could have been given to grievants per Kenya Labour Laws Kshs.8,500/=.

2. Annual Leave per Kenya Labour Laws which was not granted to him

1. 21 days pay = 21 days x 3500 = Kshs.6851. 00

26

2. 3 months prorate leave 3 x 850 = Kshs.981. 000

26

3. 15 days service gratuity = 15 x 8500 = Kshs.490400

26

4. 12 months salary for unlawful termination of employment because joining union = Kshs.8500 x 12 months = Kshs.102. 000/=

Total amount to be paid

1. 21 days x 8500=6850. 00

26 =981. 00

2. 3 x 8500=981. 000

26

3. 15 x 8500=102,000

4. 12 months salary x 9500 = 176,536. 00

26

She prays as follows;

a) Claimant humbly prays to Honourable Court to award the grievant demanded demands since the Respondent did violate labour laws by terminating the grievant’s employment because of joining a trade union which was right to join.

b) The Respondent did violate section 35 and 36 of Employment Act 2007 by neglecting to give a month notice pay in lieu of notice to the grievant.

c) In the dispute and neglecting to pay annual leave and pro-rata leave due to grievant per Employment Act 2007 section 28.

This matter came to court variously until the 20th April, 2018 when the claimant agreed on a determination by way of written submissions.

The issues for determination therefore are

1. Whether the termination of the employment of the grievant by the respondent was wrongful, unfair and unlawful?

2. Whether the claimant is entitled to the relief sought?

3. Who bears the costs of this claim?

The 1st issue for determination is whether the termination of the employment of the grievant by the respondent was wrongful, unfair and unlawful. The claimant in her written submissions dated 27th April, 2018, submits a case of unlawful termination of employment.

The claimant reiterates her case, submits and forments a case of unlawful employment occasioned by the high handedness of the respondent. The respondent in toto disregarded the provisions of the law and particularly the Employment Act, 2007 in the termination of the employment of the grivants.

The impunity of the respondent has scared one of the grievants into abandoning his claim in fear of a reprimand by the respondent. Should this be condoned? My answer is no. This court should at all times stand with the oppressed parties to employment contracts, be they employer or employee. It would be unfair for this court to abandon the cause of a grievant who has been intimidated and still feels intimidated by the possible or likely misconduct of an employer. I would in the circumstances ignore the abandonment of the claim by the 2nd grievant and in the interest of justice make an award in his favour. As to possible interference and loss of employment on the instigation of the respondent, we cross the bridge when we reach it.

The court should at all times stand in the protection of the employment rights of the vulnerable in society. This is a cardinal requisition of the tenet of justice. We should not allow an employer to discrete the fundamental rights and freedoms of an employee and further intimidate them to perpetual silence. This would amount to nurturing impunity at the work place and should be ostracized in toto. Courts should at all times be safeguards and cautions of employment rights.

This cause is not defended. We have not heard the respondent’s version of the events leading to the dispute. We, however, note that this was by choice. The respondent was served and always aware of these proceedings. She could have opted to treat this process with the contempt that she treated the endeavor at reconciliation by the conciliator. I therefore find a case of unlawful termination of employment and hold as such.

The 2nd issue for determination is whether the claimant is entitled to the relief sought. He is. Having won on a case of unlawful termination of employment, he becomes entitled to the relief sought.

I am therefore inclined to allow the claim and award relief as follows;

i. One (1) months salary in lieu of notice …………………………..Kshs.8,500. 00

ii. Annual leave for 21 days = 21 x 8,500/26 =……………………..Kshs.6,865. 00

iii. Three (3) months pro rata leave 3 x 8500/26= …………………...Kshs.981. 00

iv. Twelve (12) months salary as compensation

for unlawful termination of employment Kshs.8,500. 00 x 12 = ………Kshs.102,000. 00

Total Claim……………………………………………………………Kshs.118,346. 00

v. The Commissioner of labour be and is hereby ordered to, with the involvement of the parties, compute all dues payable to grievant No.2, Bosco Ndunda, in terms of this judgment of court within 120 days of today’s date.

vi. Mention on 22nd November, 2018 for a report on computation.

vii. The costs of this claim shall be borne by the respondent

Dated and signed this 19th day of July, 2018.

D.K. Njagi Marete

JUDGE

Delivered and signed this 25th day of July, 2018.

Maureen Onyango

PRINCIPAL JUDGE

Appearances

1. Mr. Joseph Omollo for the claimant union.

2. No appearance for the respondent.