[2016] KEELRC 277 (KLR)
The court found that although the cause was undefended, the union bore the burden of proving the claims for terminal benefits and other dues. The union failed to provide evidence of the actual wages earned, dates of employment, or call any of the grievants to testify. The court also noted unsatisfactory service of...
Source-derived case information.
- Citation
- [2016] KEELRC 277 (KLR)
- Parties
- Applicant: Kenya National Private Security Workers Union; Respondent: Night Guards Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 589 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- cause dismissed
- Judges
- MSA Makhandia
- Legal Topics
- Redundancy, Unlawful Termination, Burden of Proof, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya National Private Security Workers Union
Applicant
Night Guards Ltd
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of 46 employees by the respondent amounted to unlawful redundancy.
- 2 Whether the union proved entitlement to severance pay, pay in lieu of notice, leave travelling allowance, and underpayments.
- 3 Whether proper service of summons and hearing notice was effected on the respondent.
Ratio Decidendi
The court found that although the cause was undefended, the union bore the burden of proving the claims for terminal benefits and other dues. The union failed to provide evidence of the actual wages earned, dates of employment, or call any of the grievants to testify. The court also noted unsatisfactory service of summons and hearing notices on the respondent, a juristic person. In the absence of sufficient proof and evidential basis for the reliefs sought, the court held that the union failed to prove its case to the required standard and dismissed the cause.
Court Disposition
cause dismissed
Orders
- The cause is dismissed for want of proof.
- No order as to costs.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 589 OF 2014
KENYA NATIONAL PRIVATE SECURITY WORKERS UNION................CLAIMANT
v
NIGHT GUARDS LTD............................................................................RESPONDENT
JUDGMENT
1. The Kenya National Private Security Workers Union (Union) commenced legal proceedings against Night Guards Ltd (Respondent) and the issue in dispute was stated as unlawful termination of 46 employees on account of redundancy (names provided).
2. According to an affidavit of service sworn by one Vincent Ochieng, a Mr. Kenneth Njenga, son to Mrs. Christine C. Blunt was served with Notice of Summons, and he acknowledged service by signing on a copy of the Summons.
3. However, the Respondent did not file a Response.
4. On 18 December 2014, the Court fixed the Cause for hearing on 26 November 2015 with an order to the Union to serve a hearing notice.
5. When the Cause was called for hearing on the scheduled date, the Court directed the Union to file a computation of the dues it was seeking on behalf of the 46 Grievants and hearing was postponed to 5 July 2016.
6. The Union filed the computations on 31 December 2015.
7. The Cause could not proceed on 5 July 2016 and the Court rescheduled the hearing to 26 September 2016. The Union was directed to serve a hearing notice.
8. According to an affidavit of service sworn by one Morris Ajwang Akuku, a hearing notice was effected upon a Mrs Mary Ann, wife to one Jorum Waweru (caretaker to Mrs Christine N Blunt).
9. In the Court’s view, the service of both the Summons and hearing notice appear unsatisfactory considering that the Respondent is a juristic person, which should be having a registered office somewhere.
10. When the Cause was called out for hearing, Mr. Onuonga, Industrial Relations Officer holding brief for Mr. Onyulo informed the Court that the Union did not want to call any viva voce evidence and that he would rely on the record and written submissions to be filed.
11. The submissions were filed on 12 October 2016.
12. The Court has considered the record and submissions.
13. The Union reported a trade dispute to the Minister for Labour through a letter dated 22 May 2013, and the dispute was stated as refusal to pay Wycliffe Khisa and 45 others their terminal benefits.
14. The Minister accepted the dispute and Mr. L.K. Karanja of Nakuru Labour office was appointed as conciliator.
15. The Conciliator directed the parties to submit to him written submissions and also requested them to appear for a conciliation meeting which the Union attended and made submissions, after which the conciliator released a report dated 9 October 2014 advising the Union to move to Court because the Respondent’s director one Christine N. Blunt had disowned having any guards.
16. Although the Cause is undefended, the nature of reliefs sought by the Union required to be proved and this was not done.
17. For purposes of dues such as severance pay, pay in lieu of notice, leave travelling allowance and underpayments, it was incumbent upon the Union to prove the actual wages earned by the Grievants on a daily/weekly/monthly basis.
18. Dates of employment also needed to be proved.
19. It is only the Union which can tell why it chose the option of not calling any of the Grievants to testify to lay an evidential basis for the reliefs sought.
20. In the circumstances, the Court is constrained to find and hold that the Union having failed to prove its case to the required standard, the Cause herein must be dismissed.
21. No order as to costs.
Delivered, dated and signed in Nakuru on this 11th day of November 2016.
Radido Stephen
Judge
Appearances
For Union Mr. Onuonga, Industrial Relations Officer
Court Assistant Nixon