[2013] KEELRC 126 (KLR)
The court held that seasonal staff were not entitled to the same notice pay as permanent staff because the CBA, as negotiated and agreed by the parties, deliberately excluded seasonal staff from the benefit of clause 10. The court refused to intervene to correct what may be considered a bad bargain. For service pay,...
Source-derived case information.
- Citation
- [2013] KEELRC 126 (KLR)
- Parties
- Applicant: And Allied Workers Union; Respondent: Delmonte Kenya Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 149 of 2012
- Procedural Posture
- Employment and Labour Cause / Quantum Determination Post Judgment
- Outcome
- Partial determination; quantum for permanent staff agreed, quantum for seasonal staff determined as per court's findings.
- Legal Topics
- Collective Bargaining Agreements, Notice Pay, Service Pay, Seasonal Employment, Termination Benefits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
And Allied Workers Union
Applicant
Delmonte Kenya Ltd
Respondent
Procedural Posture
Employment and Labour Cause / Quantum Determination Post Judgment
Legal Issues
- 1 Whether seasonal staff are entitled to the same notice pay as permanent staff under the CBA.
- 2 Whether seasonal staff are entitled to service pay under clause 5 of the CBA despite lack of specific pleadings and evidence.
Ratio Decidendi
The court held that seasonal staff were not entitled to the same notice pay as permanent staff because the CBA, as negotiated and agreed by the parties, deliberately excluded seasonal staff from the benefit of clause 10. The court refused to intervene to correct what may be considered a bad bargain. For service pay, the court found that although its earlier judgment ordered service pay under clause 5 of the CBA, there was insufficient pleading and evidence to support the claim for all seasonal staff. The respondent's evidence showed that some seasonal staff had already been paid, and those who had not could claim the indicated sums. The court concluded that the claimant was aware of the...
Court Disposition
Partial determination; quantum for permanent staff agreed, quantum for seasonal staff determined as per court's findings.
Orders
- Seasonal staff are entitled to one month notice pay or salary in lieu as per Section 35 of the Employment Act, not 65 days as for permanent staff.
- Seasonal staff who have not collected their service pay may claim the sums indicated by the respondent in the documents filed on 16/7/2013.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA
AT MOMBASA
CAUSE NO. 149 OF 2012
AND ALLIED WORKERS UNION................................................CLAIMANT
DELMONTE KENYA LTD.......................................................RESPONDENT
R U L I N G
On 23/5/2013 the parties attended court and requested for more time to finalize calculating the quantums payable to each grievant. When they returned to court on 25/6/2013 the parties informed the court that they had only agreed on the quantums payable to the grievants who were permanent employees. They then requested to be heard on the quantum for the grievants who were seasonal staff after failing to reach amicable settlement.
Mr. Atela for the claimant relied on his bundle of documents filed on 3/7/2013 while Mr. Okeche for the respondent relied on the bundle of documents filed on 16/7/2013. On the issue of Notice pay, Mr. Atela submitted that seasonal staff should be granted 65 days just as the permanent staff as per clause 10 of the CBA. Mr. Okeche however differed with the claimant and contended the CBA did not provide for the notice period for the seasonal staff and as such he submitted that the answer to notice period should be Section 35 which provides for one month notice or salary in lieu.
The said staff were represented by the claimant in negotiating the CBA and they all along knew that the seasonal staff were distinct from the permanent staff. They also deliberately omitted them from the benefit of clause 10 of the CBA. The court will not at this point act to correct a bad bargain in the contract (CBA) between the parties herein.
As regards the issue of service pay, I reiterate the sentiments I made earlier on the issue of notice pay. It is true the court in its judgment ordered service pay under clause 5 of the CBA. However there was neither proper pleadings nor evidence adduced. The court is however persuaded by the submissions and evidence adduced by the respondent that some people were paid all or part of their service pay. That those who did not collect their pending service pay can go and claim it in the sums indicated by the respondent in her document filed in court on 16/7/2013. The court believes that the claimant knew about the truth about the issue of service pay but dishonestly chose to hide it from the court.
Signed, dated and delivered this 4th October 2013.
JUDGE