[2006] KEELRC 2 (KLR)

REPUBLIC OF KENYA.

IN THE INDUSTRIAL COURT OF KENYA

AT NAIROBI.

(Before: Charles P. Chemmuttut, J.,

J.M. Kilonzo & O.A. Wafula, Members.)

CAUSE NO. 25 OF 2006.

KENYA UNION OF COMMERCIAL, FOOD& ALLIED WORKERS............Claimants.

v.

KENYA MILLERS LTD. ....................................................................Respondents.

Issue in Dispute:-

“Dismissal of Mr. Charles Kaloki”.

Benson I. Maina, Assistant Secretary General, for the Claimants

(hereinafter called the Union).

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

A W A R D.

The Minister for Labour referred this dispute to the Court for consideration and determination on 8th February, 2006, under powers vested in, or conferred upon, him by Section 8 of the Trade Disputes Act, Cap. 234, Laws of Kenya (which is hereinafter referred to as the Act); and his reference, together with the statutory certificates from the Labour Commissioner and the Minister himself under Section 14(9)(e) and (f) of the Act, were received by the Court on 17th February, 2006. The dispute was then listed for mention on 28th March, 2006, and the parties were notified to attend. On this occasion, Mr. Agapio Muruiki, Assistant Secretary General, appeared for the Union but there was no appearance for the Company. Despite non-appearance of the representative of the Company, however, the parties were directed to submit or file their respective written memoranda or statements on or before 19th April and10th May, 2006, and the dispute was fixed for hearing on 21st June, 2006. It was also ordered that the Company should be duly served with the hearing notice and a copy of the written memorandum by the Union. Mr. Maina for the Union submitted his memorandum on 20th April, 2006, a copy of which was served by a duly authorized process server, Mr. Leonard Visanya, upon the director of the Company, who acknowledged, signed and endorsed on the covering letter “Received on 22nd May at 2. 00 p.m.”, but there was no reply statement from the Company thereto. On 21st June, 2006, Mr. Maina appeared for the Union, but there was no appearance for the Company, and no reasons were given for their inability to file their reply statement and/or appear during the hearing of this dispute. The dispute was, therefore, heard ex-parte.

The Company, which are popularly or commonly known as “ Bonanza Millers”, and the Union have a valid recognition agreement and have also entered into some collective agreements which regulate the terms and conditions of service of the unionisable employees.

Mr. Maina submitted that the grievant was employed by the Company in May 1989 as a Machine Operator, and he was absorbed as a permanent employee in January, 1990. He worked at various branches of the Company, and in 1994 he was elected Deputy Chief Shopsteward and immediately thereafter Chief Shopsteward following the resignation of a Mr. Odera. The grievant was dismissed on 16th June, 2003 for allegedly disobeying a lawful order, but in actual fact his dismissal was on account of trade union activities. At the time of his dismissal the grievant was earning a salary of Kshs.4,060/= and a house allowance of Kshs.825/= per month.

The parties attempted to settle the matter at their own level but they were unable to agree. Consequently, the union reported a formal trade dispute to the Minister for Labour in accordance with Section 4 of the Act. The Minister accepted the dispute and appointed Ms. Mary Kahuthia of Industrial Area Labour Office to act as the Investigator; and in his investigation report, which was released to the parties on 29th June, 2003, the Minister found, inter alia, that the dismissal of the grievant, who had a clean employment record, was due to his union activities. He, therefore, recommended that, in addition to all normal terminal benefits granted in accordance with the parties’ collective bargaining agreement, the grievant be paid an additional twelve (12) months wages as compensation for wrongful dismissal and loss of employment.

The Minister finally appealed to the parties to accept the recommendation as a basis of settlement of this dispute. The Union accepted the recommendation, but it would appear that the Company rejected it. Hence this dispute for consideration and determination.

Mr. Maina submitted further that the grievant was underpaid by the Company during the tenure of his employment, and he was also denied his overtime allowance, notice pay and gratuity. In the circumstances, he prayed that the grievant be paid Kshs. 330,395/=,made up as follows:-

“A SALARY BY THEN 3,513/- HOUSE ALLOWANCE 525/-

1999 MAY TO APRIL 2000 INCREASE

BY 10% & 8% OF 4,386/-= 5,210. 57/=

BMAY 2000 TO 2001 INCREASE

BY 8% OF 5,210. 57/-= 5,627. 47/=

CMAY 2001 TO APRIL 2002 INCREASE

BY 8% OF 5,627. 42/-= 6,113. 63/=

DMAY 2002 TO APRIL 2003 INCREASE

BY 8% OF 6,113. 63= 6,602. 72/=

1. ARREARS OF SALARY

MAY 1999 – DECEMBER 1999

5,210. 57/- - 3,513. 88/- - 1,696. 69 X 8 = 11,876. 83/=

2. JANUARY 2000 – APRIL 2000

5,210. 57/- - 4,060/- - 1,150. 57 X 4= 4,602. 28/=

3. HOUSE ALLOWANCE

MAY 1999 – DECEMBER 2000

1,300/- - 525/- - 775/- X 8/- = 6,200/-

4. JANUARY 2000 – APRIL 2000= 1,900/-

1,300/- - 825/- - 475/- X 4

5. LEAVE TRAVELLING ALLOWANCE

1,500/- - 900/-= 600/-

1ST YEAR SUB TOTAL AMOUNT= 25,173/-

6. DIFFERENCE IN SALARY

MAY 2000 – APRIL 2001

5,627. 4/- - 4,060/- - 1,567. 42/- X 12= 18,809. 04/-

7. HOUSE ALLOWANCE

1,500/- - 825/- - 697/- X 12= 8,100/-

8. LEAVE TRAVELLING ALLOWANCE

1,500/- - 900/-= 600/-

9. OVERTIME= 7,803/-

2ND YEAR SUB TOTAL AMOUNT= 35,312. 40/-

10. DIFFERENCE IN SALARY

MAY 2001 – 2002 APRIL

6,113. 63/- - 4,060/- - 2,053. 63/- X 12= 24,636/-

11. HOUSE ALLOWANCE

1,800/- - 835/- - 975/- X 12= 11,700/-

12. LEAVE TRAVELLING ALLOWANCE

1,500/- - 900/-= 600/-

13. OVERTIME= 6,285/-

3RD YEAR SUB TOTAL AMOUNT= 43,221/-

14. DIFFERENCE IN SALARY

MAY 2002 – APRIL 2003

6,602. 72/- - 4,060/- = 2,542. 72/- - 12= 30,512. 64/-

15. HOUSE ALLOWANCE

2000/- - 825/- = 1,175/- X 12= 14,100/-

16. LEAVE TRAVELLING ALLOWANCE

1,500/- - 900/-= 600/-

17. OVERTIME = 9,958. 50/-

18. MAY 2003 – JUNE 16TH

6,602. 72/- - 4,060/- = 2,542. 72/- + 1,000= 3,542. 72/-

19. OVERTIME = 875/-

4TH YEAR SUB TOTAL AMOUNT = 59,589/-

OTHER BENEFITS

20. NOTICE – 2 MONTHS PAY IN LIEU THEREOF

6,602. 72/- X 2= 13,205. 44/-

21. GRATUITY: 21 DAYS PER YEAR OF SERVICE

(14YEARS OF SERVICE).

21 X 14 = 294 X 6,602. 72= 74. 661. 53/-

26

22. 12 MONTHS WAGES AS COMPENSATION FOR

WRONGFUL DISMISSAL AND LOSS OF EMPLOYMENT

(IN ACCORDANCE WITH THE MINISTERS

RECOMMENDATIONS) 6,602. 72/- X 12= 79,232. 64/-

GRAND TOTAL =330,395. 01/-”.

Since the demand or claim by the Union, on behalf of the grievant, stands unchallenged, the amount hereinabove is granted, and the Company is ordered to pay the same within thirty (30) days from the date of this award.

On being consulted, the members of the Court who sat with me are in full agreement with this decision.

DATEDand delivered in Nairobi this 12th day of July, 2006.

Charles P. Chemmuttut, MBS.,

JUDGE.

J.M. Kilonzo,O.A. Wafula,

MEMBER. MEMBER.