[2018] KEELRC 48 (KLR)

REPUBLIC OF KENYA

INDUSTRIAL COURT OF KENYA AT NAIROBI

CAUSE NO. 1149 OF 2014

(Before D. K. N. Marete)

KENYA SCIENTIFIC RESEARCH INTERNATIONAL TECHNICAL AND

INSTITUTION WORKERS UNION...............................................CLAIMANT

VERSUS

SANA INDUSTRIES CO. LIMITED........................................RESPONDENT

JUDGEMENT

This matter was originated by a Memorandum of Claim dated 30th May, 2013. The issues in dispute are therein cited as;

1. Unlawful termination of Vincent Ochwada and 93 others on account of redundancy.

2. The Respondents to be restrained from terminating the services of union members.

The respondent in an Amended Respondent’s Statement of Defence dated 22nd December, 2017 denies the claim and prays that this be dismissed with costs.

The claimant in a Replying to the Respondent’s Amended Reply dated 27th March, 2017 reiterates her case and prays for payment of terminal benefits in Cause No. 822/2013 and 1149/2014 and costs of the suit on 12th February, 2018.

This matter is consolidated with Industrial Court Cause No.822 of 2013.

The claimant’s case is that Vincent Ochwada and 93 others were employed by the respondent on diverse dates prior to their termination of their services. This was in contravention of section 40, 41 and 45 of the Employment Act, 2007.

The termination was due to the grievants’ joining the claimant union after it obtained a court order for access to the respondent’s premises on 23rd January, 2013. They were not even paid their terminal dues as is usual.

The claimant’s further case is that on 8th February, 2013 and 24th May, 2013, she wrote a letter to the respondent cautioning him not to terminate the services of the unionized employees. Further, these termination contravened section 40 (1) (b) of the Employment Act, 2007 which is in tandem with the ILO Convention No.158. No reasons for termination were issued. This is an affront of section 43 of the said Act and is tantamount to a fair labour practices.

She prays as follows;

1. THAT the claimants pray that this honourable court do find that their termination by the Respondents was wrongful and unlawful and so make the following orders.

2. THAT the Honourable Court be pleased to order and direct the Respondents to pay the 94 grievants all their terminal benefits according to appendix II,

3. (i) THAT the Honourable Court be pleased to order and direct the Respondents to pay 94 grievant s their 12 month salary as compensation for loss of employment as provided for under section 49 (1) (c) of the Employment Act, 2007.

(ii) Any other award or benefit which this Honourable court may deem fit to grant the circumstance of this case.

4. THAT the Honourable court be pleased to order and direct the Respondents to reinstate 94 grievants back to their jobs in case they do not want to pay them.

5. THAT the Honourable court be pleased to order and direct the Respondents to pay 94 grievants salaries and allowances for the period that they have been kept out of employment to date.

6. THAT the Honourable Court be pleased to order and direct the Respondents to pay 94 grievants their terminal benefits including – Notice pay, leave accrued, severance pay, days worked 12 month salary as compensation for loss of Employment and salary underpayment Grand Total Kshs.233,344,955

Refer Appendix …III

7. THAT the Honourable Court be pleased to pay any other award the deemed fit to grant in this suit.

8. THAT the Honourable court be pleased to order and direct the Respondents to pay the cost of this suit.

The respondent case is a denial of the claim.

It is her averment that the claim is misplaced, bad in law and an abuse of the process of court. This is because it is misleading on its factual basis. She therefore seeks and his intent on making an application for its striking out at an appropriate moment.

The respondent’s further case is that the claimant did not have a recognition agreement with the respondent but instead, she had one with the Kenya Union of Hair and Beauty Saloon Workers Union and they are in the middle of concluding a CBA inter partes. She further expresses her case as follows;

5. The following grievants are still in employment of the respondent but their names have been included among the purportedly terminated employees which is not correct.

i. Judy Moraa

ii. Bernard Mutara

iii. Mary Nyachome Kiriama

iv. Marion Makine Thomas

6. The following Grievant were former casual employees of the Respondent and they left at their own volition never to resume duty for more than 2 months prior to filing of this claim. It’s therefore not true to state that they were dismissed or terminated from employment:-

i. John Mwinzi - Left 13th July 2013

ii. Shelton Nambuko Angaya - Absconded

iii. Roselyn Mueni - Proceeded on maternity leave and has never resumed

iv. Jedida Munaine Ndolo - Proceeded on leave and never came back.

v. Vincent Ochwanda - Absconded

7. The Respondents state that the following Grievant have never been employed as casuals or on contract at any time. The Claimant union is put to strict proof thereof.

i. Brayara Mwana Mbithi

ii. Susan Kariuki

iii. Priscah Nyatunge

iv. Alice Mbura

v. Martha Mareasinywa

vi. Doris Kabura Mokaya

vii. Virginia Weira

8. The rest of the grievants were employed on casual basis and they used to report at the Respondent’s premises wherever there was availability of work to be done. None of the Grievants ever worked for more than 1 week consecutively. The Grievants used to work intermittently as the Respondent could not be able to hire all the casuals on contract basis as the amount of work fluctuates depending on the market demands

9. The Respondent reiterates that the contents of paragraph 3 are not correct as the Respondent has never opposed the desire of any of its employees to join or not to join a union. The Respondent further states that she has a recognition agreement with the Kenya Union of Hair and Beauty Salon Workers and parties are almost concluding a Collective Bargaining Agreement.

It is her further case that the claimant lacks a cause of action against the respondent as the alleged grievants’ were not her employees or let at different times for various reasons. She denies refusal for her employees to join a trade union of their choice. Her case is a reiteration of her position with the Kenya Union of Hair and Beauty Salon Workers Union.

The respondent in the penultimate avers that the claim is intended to mislead the court and twist the respondent to accept unlawful demands from the claimant union. In any event, the Recognition Agreed signed between herself and the Kenya Union of Hair and Beauty Salon Workers Union debars her from recognizing any other union for purposes of collective bargaining.

The claimant’s comes up with a Reply to the Respondent’s Amended Reply and puts her case in a somewhat similar version of the claim. This is as follows;

The claimant union was the pioneer union with the respondent upon obtaining entry/access orders on 23rd January, 2013.

The claimant union enrolled almost 1000 members within a month os the order (s) of access.

Upon recruitment of the worker member, the respondent embarked on an intimidation and termination expedition of the unionized workers.

All attempts to stem this unfair labour practice were rebuffed by the respondent.

The allegation of absconding by the grievants is denied.

The Respondent is misleading the court on the priority of trade union activities with herself: the claimant was the pioneer union on attainment of access orders of court.

Cause No.1786/2013 is a challenge to the recognition agreement that was signed in order to frustrate the claimant from representing her members.

(et al – refer to Reply)

The matter came to court variously until the 18th October, 2018 when the parties agreed on a disposal of the cause by way of written submissions.

The issues in dispute therefore are;

1. Whether there was a termination of the employment of the 94 grievants’ of the claimant union by the respondent?

2. Whether the termination, if at all, was wrongful, unfair and unlawful.

3. Is the claimant entitled to the relief sought?

4. Who bears the costs of the claim?

The 1st issue for determination is whether there was a termination of the employment of the 94 grievants’ of the claimant union by the respondent. The claimant in her written submission dated 31st October, 2018 reiterates a case of termination of the employment of her ninety-four (94) members.

The claimant does this by a recitation of the cause of events at the respondent’s work place and also a reiteration that the grievants’ were terminated from employment for joining a union of their choice – to wit, the claimant. It is her submission that this is a violation of Article 41 (c) of the Constitution of Kenya, 2010 and section 4 of the Labour Relations Act, 2007. This is also an affront to the determinate sections 41, 43 and 45 of the Employment Act, 2007 which sections define and distinguish lawful and unlawful termination of employment in the language and spirit of the law.

The respondent in her written submission dated 29th October, 2018 faults the basis of this claim. It is her case that with the engagement of the Kenya Union of Hair and Beauty Saloon Workers Union, she has no competency or basis for engaging the claimant union.

It is also her submission that the claim does not disclose a cause of action against herself. This is because a number of employees to whom the claim pleads were dismissed are still in employment. The claim is muzzled up as the claimant is not able to distinguish the respondent’s employees as there is no contract of employment or other documentation to indicate their employment to the respondent.

The respondent further expresses her case as follows;

6. Even if the court was to extend its discretion in favor of the Claimant union on admissibility of the pleadings on record, the claim does not disclose when the alleged cause of action arose the documents relied on by the union, if admissible, show that the union is alleging various causes of action against the alleged members in the same pleading.

7. The claim does not qualify as a class suit since the alleged causes of action arose in different times. This quite embarrassing on the part of the Respondent as the case is not straight forward and have to keep guessing what the Claimant intended to bring forth.

9. Bullen and Leake Jacob’s Precedents of pleadings (supra), as follows;

“For this purpose, a pleading or action is frivolous when it is without substance or groundless or fanciful and it is vexatious when it lacks bona fides and is hopeless or oppressive and tends to cause the opposite party unnecessary anxiety, trouble and expense. Thus, a proceeding may be said to be frivolous when a party is trifling with the court, or when to put it forward would be wasting the time of the court or when it is not capable of reasoned argument. Again, a proceeding may be said to be vexatious when it is or is shown to be without foundation or where it cannot possibly succeed or where the action is brought or the defence is raised only for annoyance or to gain some fanciful advantage or when it can really lead to no possible good. So, it is vexatious and wrong to make solicitors parties to an action merely in order to obtain discovery relief from them…

10. Some of the Claimants are still working with the Respondent but their names have been included in the appendix to the claim. The verifying affidavit is deposing to falsehood to support a claim that is frivolous. It’s trite law that he who seeks equity must come to court with clean hands. The Claimant union has we have demonstrated has moved these court unclean hands. The union deserve no audience and the claim ought to be dismissed on that ground.

11. The Respondent has demonstrated above that it has never terminated any of the Grievants to the appendix annexed. The Grievants alleging to have been terminated actually left employment at their own volition.

Some of the names that are appearing in the claim are not know to the Respondent. They have never been in the employment of the Respondent and therefore fictitious. During taking of directions the Claimant union never bothered to amend the pleadings or at all to deny these facts.

12. The following employees whose names appear in the list among those who have sued through the Claimant union have also sued differently in person in cause numbers 1273 of 2013 (Consolidated with cause nos.1278 of 2013, 1266 of 2013, 1272 of 2013, 1270 of 2013, 1296 of 2013, 1265 of 2013 & 1271 of 1213 pursuant to Court Order issued on 14/5/14 before Learned Justice Nzioki wa Makau)

Grace wanjiru Ndegwa

Judith Nzisa

Electrine Ajiambo Kerera

Emma Nduku Nzioki

Catherine Mbanga

Caroyne Awiti Abongo

Caroline Ndinda Mutinda

Brettah Mwikali Mwangangi

13. The above claims were dismissed by this Honourable court on 6/4/2017 for want of prosecution. The Union has failed to disclose these facts to the court as it does not seem to have either instructions or the Claimants are suing before this court to enrich themselves using a court process. This is an abuse of the process. This has been demonstrated in the amended defence filed herein.

14. From the above facts which the union has conceded to be existing and the fact that there are no names on the pleading that the court can use to make specific orders we submit that the claim is hopeless and must fail. The pleadings are meant to slap the court with unintelligible claim and the Respondent with an ambush not knowing what the cause of action is and the exact remedies for particular people.

Section 10 and 74 of the Employment Act, 2007 mandate the employer to keep and maintain records of employment and employment contracts. The respondent submissions of a confused state of pleadings by the claimant in a scenario where he does not atone this by keeping, maintaining and availing the employment records of the grievants is escapist. It is not excusable. The respondent cannot expect to benefit from her mischief and misconduct. I therefore find a case of termination of the grievants’ by the respondent and hold as such.

The 2nd issue for determination is whether the termination, if at all, was wrongful, unfair and unlawful. This matter is explicit. The grievants’ were terminated from employment due to the infighting between the claimant and the respondent. This in fight was occasioned by the respondent’s reluctance to recognize and appreciate the place of the claimant in entrenching fair labour practices at her work place. She was bent on frustrating attempts at order and trade union representation for her workers by the claimant. This was based on the pretext that she was tied to a rival union of the claimant. A case of unlawful termination of employment of the grievants’ therefore ensues and I find as such.

The 3rd issue for determination is whether the claimant is entitled to the relief sought. She is. Having won on a case of termination and unlawful termination of the 94 grievants’, she becomes entitled to the relief sought.

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

i. One (1) months salary in lieu of notice.

ii. Eight (8) months salary as compensation for unlawful termination of employment.

iii. That the Commissioner of Labour, with the involvement of the parties, beand is hereby ordered to compute the grievants’ dues in (i) and (ii) above within 120 days of this judgement of court.

iv. The computation in (i) and (ii) above shall be pegged on the grievant’s gross salaries at the time of termination.

v. Mention on 18th April, 2019 for a report on computation by the Commissioner of Labour.

vi. The costs of this cause shall be borne by the respondent.

Dated and signed this day of 2018.

D.K. Njagi Marete

JUDGE

Delivered and signed this 20th day of December, 2018.

Maureen Onyango

PRINCIPAL JUDGE

Appearances

1. Mr. Martin Oduor for the claimant union.

2. Mr. Masese instructed by Federation of Kenya Employers for the respondent.