[2023] KEELRC 1669 (KLR)

Kenya Union of Domestic, Hotels, Educational Institutions and Hospitals Workers v University Council of Technical University of Mombasa (Cause E002 of 2021) [2023] KEELRC 1669 (KLR) (29 June 2023) (Judgment)

Neutral citation: [2023] KEELRC 1669 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Mombasa

Cause E002 of 2021

M Mbaru, J

June 29, 2023

Between

Kenya Union of Domestic, Hotels, Educational Institutions and Hospitals Workers

Claimant

and

The University Council of Technical University of Mombasa

Respondent

Judgment

1. The issue in dispute is registered as the refusal by the respondent to pay terminal benefits to 67 grievants and members of the claimant.

2. Parties agreed that the only pending issue in dispute is article 25 of the CBA on payment of service gratuity and hence filed written submissions to address the same.

3. The claim is the claimant is recognised by the respondent and have a Recognition Agreement and several Collective Agreements (CBA) have been registered.

4. The 67 grievants were employed by the respondent from the year 2011 to 2018 when their contracts ended. The claimant filed ELRC Petition No 9 of 2017 and judgment was delivered on May 28, 2018 and the respondent filed an appeal, being Mombasa Civil Appeal No 108 of 2018. Following the filing of the petition, the respondent refused to renew the grievants’ contracts and outsourced their services hence denying them employment and were therefore victimised for filing a petition seeking to be employed on permanent and pensionable terms.

5. The claim is for orders that;a.This court be pleased to declare the respondent’s refusal to pay service gratuity to the grievants is unlawful and illegal;b.The court be pleased to issue an order directing the respondent to pay the grievants Ksh 25,910,285. 80 for service gratuityc.The court be pleased to issue an order directing the respondent to issue certificate of service to the grievants.d.The respondent to meet the costs and interest at court rates from the date of termination.Tthe claimant filed statements and pursuant to Rule 9 of the Employment and Labour Relations Court (Procedure) Rules, 2016 filed the particulars of each grievant.

6. The claims are as follows;1. Ali Rajab SulemanDate of Employment; July 1, 2011Occupation Accommodation AssistantDate of Termination January 10, 2018Last Salary Kshs 15, 810. 00Duration in Employment; 6 years and 6 months2. Hamisi Mchombo NdaroDate of Employment; July 1, 2011Occupation Catering AssistantDate of Termination January 10, 2018Last Salary Kshs 15, 810. 00Duration in Employment; 6 years and 6 months3. Pili Mohamed MangwayaDate of Employment; July 1, 2011Occupation Accommodation AssistantDate of Termination January 10, 2018Last salary Kshs 15, 810. 00Duration in Employment; 6 years and 6 months4. Eunice Achieng MbuyaDate of Employment; October 6, 2011Occupation Laundry AssistantDate of Termination January 10, 2018Last salary Kshs 15, 810. 00Duration in Employment; 6 years and 4 months5. Said Salim YugaDate of Employment; July 1, 2011Occupation Environment AssistantDate of Termination January 10, 2018Last Salary Kshs 15, 810. 00Duration in Employment; 6 years and 6 months6. Zainabu Uchi AbduDate of Employment; July 1, 2011Occupation Accommodation AssistantDate of Termination January 10, 2018Last Salary Kshs 15, 810. 00Duration in Employment; 6 years and 6 months7. Mwanaisha Ramadhan MapengoDate of Employment; July 1, 2011Occupation Accommodation AssistantDate of Termination January 10, 2018Last Salary Kshs 15, 810. 00Duration in Employment; 6 years and 6 months8. James Ngua GeorgeDate of Employment; January 1, 2011Occupation Office AssistantDate of Termination January 10, 2018Last salary Kshs 15, 810. 00Duration in Employment; 6 years and 6 months9. Changawa Kazungu KapombeDate of Employment; July 1, 2011Occupation Sewerage AttendantDate of Termination January 10, 2018Last Salary Kshs 15, 810. 00Duration in Employment; 6 years and 6 months10. Martin Ngoka MazeraDate of Employment; July 1, 2011Occupation Accommodation AssistantDate of Termination January 10, 2018Last Salary Kshs 15, 810. 00Duration in Employment; 6 years and 6 months11. Wycliffe EnyanguDate of Employment; January 12, 2017Occupation Catering AssistantDate of Termination January 11, 2018Last Salary Kshs 15, 810. 00Duration in Employment; 1 year.12. Fatuma Mohamed HamisiDate of Employment; 1st July, 2011Occupation Catering AssistantDate of Termination 9th January, 2018Last Salary Kshs. 15, 810. 00Duration in Employment; 6 years and 6 months13. Ndaa Jefwa KiringiDate of Employment; July 1, 2011Occupation Environmental AssistantDate of Termination January 10, 2018Last Salary Kshs 15,810. 00Duration in Employment; 6 years and 6 months14. Fatuma Cheshi AthumaniDate of Employment; July 1, 2011Occupation Catering Assistant Date of Termination January 11, 2018Last Salary Kshs 15, 810. 00Duration in Employment; 6 years and 6 months15. Zainabu Salim VugaDate of Employment; 1st July, 2011Occupation Secretary IIIDate of Termination 11th January, 2018Last Salary Kshs 15, 810. 00Duration in Employment; 6 years and 6 months16. Rose Khaseke MakadiaDate of Employment; 1st July, 2011 Occupation Catering AssistantDate of Termination 11th January, 2018Last Salary Kshs 29, 550. 00Duration in Employment; 6 years and 6 months17. Dhadho Kombo JilloDate of Employment; 1st July, 2011 Occupation Catering AssistantDate of Termination 9th January, 2018Last Salary Kshs 15, 810. 00Duration in Employment; 6 years and 6 months18. Susan Atieno MboyaDate of Employment; 11th January, 2011Occupation Accommodation AssistantDate of Termination 11th January, 2018Last Salary Kshs 15,810. 00Duration in Employment; 5 years and 6 month19. Samwel Mwatsuma OnesmasDate of Employment; 11th January, 2017Occupation Office AssistantLast Salary Kshs 15, 810. 00Date of Termination 10th January, 2018Duration in Employment; l year.20. Lydia Kerubo MotachiDate of Employment; 11th January, 2017Occupation Office AssistantDate of Termination 1st July, 2011Last Salary Kshs 15, 810. 00Duration in Employment; 6 years and 6 months.21. Jackline Mnyazi HausikuDate of Employment; 1st July, 2012Occupation Office Assistant Date of Termination 10th January, 2018Last Salary Kshs 15, 810. 00Duration in Employment; 5years and 6 months22. Justine LugoDate of Employment; 1st July, 2011Occupation Environmental AssistantLast salary Kshs 15, 810. 00Date of termination 10th January, 2018Duration in Employment; 6 years and 6 months23. Enos Alela MakutwahDate of Employment; 1st January, 2016Occupation Environmental AssistantLast salary Kshs 15,810. 00Date of termination 31st December 2016Duration in Employment; l year24. Beth Wachera KamauDate of Employment; 1st July, 2011Occupation Catering AssistantLast salary Kshs 15, 810. 00Date of termination 11th January, 2018Duration in Employment; 6 years and 6 months25. Mahenzo Francis KahindiDate of Employment; 1st July,2011Occupation Catering AssistantLast salary Kshs 15, 810. 00Date of termination 11th January, 2018Duration in Employment; 6 years and 6 months26. Chai Baya MgangaDate of Employment; 1st July,2011Occupation Environmental AssistantLast Salary Kshs 15, 810. 00Date of termination 10th January, 2018Duration in Employment; 6 years and 6 month27. Alice Chiku JustusDate of Employment; 1st October, 2011Occupation Accommodation AssistantLast salary Kshs 15, 810. 00Date of termination 11th January 2018Duration in Employment; 6 years and 3 months28. Dorothy Nechesa IndecheDate of Employment; 1st October, 2011Occupation Library AttendantDate of termination; 9th January 2018Duration in Employment; 6 years and 3months29. Rehema Suleiman AliDate of Employment; 1st July, 2011Occupation Catering Assistant.Date of Termination 10th January,2018Duration in Service 6 years and 6 months30. Bahati Juma MwalimuDate of Employment; 1st October, 2011 Occupation Environmental Assistant.Date of termination; 9th January 2018Duration in Service 6 years and 6 months31. Mwanamisi Suleiman WendoDate of Employment; 1st May, 2013Occupation Accommodation AssistantLast salary Kshs 15, 810. 00Date of termination 11th January, 2018Duration in Employment; 4 years and 6 months32. Rama Ali ChamaDate of Employment; 10th January, 2017Occupation Catering AssistantLast Salary Kshs 15, 810. 00Date of termination 10th January, 2012Duration in Employment; 5 years and 9 months33. Rehema Yusuf FakiiDate of Employment; 1st May 2014Occupation Accommodation AssistantLast salary Kshs 15, 810. 00Date of termination 10th January, 2018Duration in Employment; 3 years and 6 months34. Ibrahim Said MwafrikaDate of Employment; 1st May 2014Occupation Catering AssistantLast salary Kshs 15, 810. 00Date of termination 9th January, 2018Duration in Employment; 3 years and 6 months35. Abdalla Said MwamasareDate of Employment; 1st May, 2015Occupation Accommodation AssistantLast salary Kshs 15, 810. 00Date of termination 9th January, 2018Duration in Employment; 2 years and 6 months36. Popo Mohammed KassimDate of Employment; 1st August, 2015Occupation Administrator AssistantLast Salary Kshs 21,330. 00Date of termination 11th January, 2018Duration in Employment; 3 years and 5 months37. Jeremiah Mwaiwa VuvaDate of Employment; 1st October, 2011Occupation Welder AssistantLast Salary Kshs 29,500. 00Date of termination 11th January, 2018Duration in Employment; 6 years and 2 months38. Daniel MakosiDate of Employment; 1st July, 2011Occupation Masonry AssistantLast Salary Kshs 29, 550. 00Date of termination 11th January, 2018Duration in Employment; 6 years and 6 months39. Zaituni Juma SwazuriDate of Employment; 11th June, 2011Occupation Accommodation AssistantLast salary Kshs 24, 330. 00Date of termination 11th January, 2018Duration in Employment; 6 years and 6 months40. Thomas Mwarashu NgwaleDate of Employment; 12th January, 2017Occupation Catering AssistantLast Salary Kshs 15, 810. 00Date of termination 11th January, 2018Duration in Employment; 1 year41. Mwanakombo Mwinyihaji MpendakulaDate of Employment; 6th December, 2011Occupation Environmental AssistantLast Salary Kshs 15, 810. 00Date of Termination 11th January, 2018Duration in Employment; 6 years42. Emmanuel MasaboDate of Employment; 8th December, 2011Occupation Environmental AssistantLast Salary Kshs 15, 810. 00Date of termination 11th January, 2018Duration in Employment; 6 years and 1 month43. Robert Fondo KarisaDate of Employment; 1st March, 2012Occupation Environmental AssistantLast Salary Kshs 15, 810. 00Date of termination 10th January, 2018Duration in Employment; 5 years and 9 months44. Anthony Kimani NdichuDate of Employment; 1st March, 2012Occupation Environmental AssistantLast Salary Kshs 15,810. 00Date of termination 11th January, 2018Duration in Employment; 5 years and 9 months45. Rodges Kaingu ZiroDate of Employment; 13th December, 2011Occupation Environmental AssistantLast salary Kshs 15, 810. 00Date of termination 11th January, 2018Duration in Employment; 6 years46. Sinangowa Abdulrahman MlaoDate of Employment; 1st December,2011Occupation Systems Data Officer AssistantLast Salary Kshs 35,700Date of Termination 11th January, 2018Duration in Employment; 6 years47. Riziki Ali MwachelaDate of Employment; 12th March, 2012Occupation Accommodation AssistantLast salary Kshs 15, 810. 00Date of termination 11th January, 2018Duration in Employment; 5 years and 9 months48. Kenga SophiaDate of Employment; 11th January, 2012Occupation Office AssistantLast Salary Kshs. 15, 810. 00Date of termination 10th January, 2018Duration in Employment; 5 years 9 months49. Valentine Mesi MwarutaEmployment; 1st July, 2011Occupation Accommodation AssistantLast Salary Kshs. 15, 810. 00Date of termination 11th January, 2018Duration in Employment; 6 years and 6 months50. Pili Mohamed BukiDate of Employment; 1st May, 2013Occupation Sanitary AttendantLast salary Kshs. 15,810. 00Date of termination 11th January, 2018Duration in Employment; 4 years and 6 months51. Shadrack Mbithi NdonyeDate of Employment; 11th January, 2017Occupation System Data OfficerLast Salary Kshs. 35,700. 00Date of Termination 10th January, 2018Duration in Employment; l year52. Sultan Ali MwadzuyaDate of Employment; 16th May, 2016Occupation Catering AssistantLast Salary Kshs. 15,810. 00Date of termination 9th January, 2018Duration in Employment; 2 years53. Stephen Ndegwa MwanyohaDate of Employment; 1st May, 2014Occupation Administrative AssistantLast Salary Kshs. 35,700Date of termination 11th January, 2018Duration in Employment; 3 years and 7 months54. Julian Idza ChaiDate of Employment; 1st May 2014Occupation Catering AssistantLast Salary Kshs. 15,810. 00Date of termination 11th January, 2018Duration in Employment; 3 years and 6 months55. Bernard Munga MkomuDate of Employment; 22nd August, 2015Occupation Catering AssistantLast Salary Kshs. 15,810. 00Date of termination 11th January, 2018Duration in Employment; 3 years and 4 months56. Herman Mwaivugha MwakuduDate of Employment; 1st August, 2015Occupation Catering AssistantLast Salary Kshs. 15,810. 00Date of Termination 11th January, 2018Duration in Employment; 3 years and 4 years57. Davis Mkwinyo ChiribaDate of Employment; 1st July,2011Occupation Environment AssistantLast Salary Kshs. 15,810. 00Date of termination 11th January, 2018Duration in Employment; 6 years and 6 months58. Adelaide Akello OlooDate of Employment; 12th January 2017Occupation Accommodation AssistantLast Salary Kshs. 15,810. 00Date of termination 11th January, 2018Duration in Employment; 1 year59. Edison KainguDate of Employment; 1st July, 2011Occupation Catering Assistant.Last Salary Kshs. 15,810. 00Date of termination 11th January, 2018Duration in Employment; 6 years 6 Months60. Elizabeth Wangari NjuhiguDate of Employment; 1st August 2015Occupation Secretary AssistantLast Salary Kshs. 21, 330. 00Date of termination 11th January, 2018Duration in Employment; 3 years61. Mariana Wangui KamauEmployment; 17th October 2013Occupation Accommodation AssistantLast Salary Kshs. 15, 810. 00Date of Termination 11th January, 2018Duration in Employment; 4 years and 3 months62. Patrick N. LwambiDate of Employment; 1st October 2011Occupation Painter/decorator AssistantLast Salary Kshs. 29, 550. 00Date of termination 11th January 2018Duration in Employment; 6 years and 2 months63. Swaleh Shee SwalehDate of Employment; 1st May, 2015Occupation Catering AssistantLast salary Kshs. 29,550. 00Date of termination 11th January, 2018Duration in Employment; 3 years 5 months64. Ali KibwanaDate of Employment; 1st October, 2011Occupation Environmental AssistantLast Salary Kshs. 15,810Date of termination 11th January, 2018Duration in Employment; 6 years and 6 months65. Dickson Mchura MgongoDate of Employment; 1st October 2011Occupation Environmental AssistantLast Salary Kshs. 15,810. 00Date of termination 11th January, 2018Duration in Employment; 6 years and 6 months66. Nancy ChelimoDate of Employment; 1st July, 2011Occupation Catering AssistantLast Salary Kshs. 21,330. 00Date of Termination 11th January, 2018Duration in Employment; 6 years and 6 months67. Name; James TauraDate of Employment; 1st July, 2011Occupation Accommodation AssistantLast salary Kshs. 15, 810. 00Date of termination 11th January, 2018Duration in Employment; 6 years and 6 months

7. In response, the respondent’s case is that the claimant lacks locus standi to represent 12 grievants who are not members of the union,1. Mwanaisha Ramadham Mpengo;2. Fatuma Chesi Athman;3. Rose Makadia Khaseke;4. Dhadho Rumbo Jilloh;5. Rehema Suleiman Ali;6. Rama Ali Rama;7. Popo Mohammed Kassim;8. Anthony Kimani Ndichu;9. Shadrack Mbithi Ndonye;10. Edison Kaingu;11. Elizabeth Wangari Njuhigu;12. Swaleh Shee Swaleh.

8. The 12 cannot be represented in these proceedings by the claimant under Section 73(3) of the Labour Relations Act.

9. The claim contravenes Rule 5(b) (I) and (ii) of the Employment and Labour Relations Court Procedure Rules.

10. The response is also that there was no termination of employment as alleged since the contracts expired by effluxion of time. The respondent had no obligation to renew the employment contracts and no employee was victimised.

11. The only claim sought is that of gratuity which is not due. Gratuity is only payable if the employment contract provides for the same. In this case, the grievants contracts did not provide for payment of gratuity. The CBA, clause 25. 0 provides for gratuity payment only to an employee who terminates employment or employment is terminated. There was no termination of employment to justify a claim for payment of gratuity in terms of clause 22. 2 of the CBA.

12. In the written submissions, the respondent’s case is that under clause 25. 0 of the CBA the payment of gratuity is not automatic. It must result from termination of employment as held in Pathfinder International Kenya Limited v Stephen Ndegwa Mwangi [2019] eklr. The CBA terms under clause 25. 0 are that gratuity pay accrues where the employee terminates employment after one year of service, where an employee retires or where the employee dies while in service or there is termination of employment for reasons of gross misconduct and gratuity is paid at the rate of 31% of the employees monthly basic salary for the number of months worked. Such gratuity is then transferred to the Pension Scheme.

13. The grievants do not qualify for gratuity pay since they were under fixed term contract which lapsed and there was no termination of employment as required under clause 22. 1 to warrant a claim for the same. The claims made should be dismissed with costs.

14. The legal issues and objections with regard to the standing of the claimant to represent 12 grievants, whether the suit is res judicata and whether the respondent can be sued were all addressed by the court in the ruling delivered on 29 October 2021. these objections were dismissed and the claimant allowed to amend the Memorandum of Claim accordingly.

15. In the written submissions, the respondent has reiterated that the 12 grievants not members of the claimant cannot benefit from this claim since they were not members of the claimant and in terms of Section 73(3) of the LRA, the claimant has no locus standi to act for these 12 grievant.

16. In employment and labour relations, the concept of fair labour practices encompasses all employees at the shop floor without distinction of rank, standing or role. See Elizabeth Washeke & 62 others v Airtel Networks (K) Limited & another [2013] eklr that;… Fairness comprehends that regard must be given not only to the position and interests of the workers, but also those of the employer, in order to make a balanced and equitable assessment. … The fairness required in the determination of an unfair labour practice must be fairness towards both employer and employee. Fairness to both means the absence of bias in favour of either. … There are no underdogs.

17. Where employees are the shop floor, whether unionised or not, whether unionisable or not, there is equal protection of the law without placing any employee to any disadvantage. In conferring employment benefits, no employee should be disadvantaged simply because they are unionisable but have not joined the union. Such would be discriminatory and contrary to Section 5 of the Employment Act, 2007 read together with Article 27 and 41 of the Constitution.

18. A best practice in this regard is to be found under Section 40(1)(d) of the Employment Act, 2007 when declaring a redundancy. No employee, unionised or not should be placed at a disadvantage;(d)where there is in existence a collective agreement between an employer and a trade union setting out terminal benefits payable upon redundancy; the employer has not placed the employee at a disadvantage for being or not being a member of the trade union;

19. The rationale is to be found under Section 49 of the LRA. There are protections with regard to employees who are not unionised so that they can benefit from a given CBA retroactively and proactive.

20. The 12 cited grievants cannot stand disadvantaged and section 73(3) of the LRA cannot apply to negate the rights and benefits secured under the same law, where a trade union is allowed to represent its members in court but not by placing other employees at a disadvantage as such would go contrary to Sections 5 and 40 of the Employment Act, 2007 and negate the Constitutional principles against non-discrimination against any employee and to ensure fair labour practices.

21. More fundamentally are the provisions of Section 26(2) of the Employment Act, 2007 which directs the court to apply terms and conditions of a contract of service as regulated under any CBA in a manner that is favourable to the employee if the contract of service issued is less favourable. This is one such case where the 12 grievants should not be placed at a disadvantage.2. Where the terms and conditions of a contract of service are regulated by any regulations, as agreed in any collective agreement or contract between the parties or enacted by any other written law, decreed by any judgment award or order of the Court are more favourable to an employee than the terms provided in this Part and Part VI, then such favourable terms and conditions of service shall apply.

22. What then constitutes termination of employment for the purpose of payment of gratuity in this case?

23. The claimant has relied on the provisions of clause 25. 0 to claim payment of gratuity for the grievants which is challenged by the respondent on the grounds that employment contracts were fixed and they lapsed by effluxion of time and there was no termination of employment.

24. The Employment Act, 2007 or the LRA do not define the word termination of employment. This can only be discerned from the law.

25Section 18 of the Employment Act, 2007 is addressing the various types of employment regimes contemplates casual employment which ends with each day and wages paid daily.

26. There is piece-work which completes are end of given task with payment of the agreed wages.

27. There is employment going beyond a given month with payment of wages monthly.

28. There is fixed term contract with a given start and end date.

29. All these types of employments start and end and are regulated in law. Such regulation is to ensure the accruing benefits arise at the end of each type of contract. There is a start and end. Such end is the date/time terminating each type of employment. It cannot therefore serve justice to assert that employment can only terminate where the employee exits employment upon death, dismissal due to gross misconduct, retirement of resignation. These, in my view are just but modes of various terminations of employment and which includes, termination by effluxion of time.

30. Under clause 25. 0 of the CBA between the parties herein, it was agreed that;Service gratuitySubject to the provisions of this agreement, gratuity shall be payable to employees on temporary contact terms of service as follows:-a.Where an employee terminates his/her service after one year of service.b.Where an employee retires in accordance with the retirement clause of this Agreement.c.Where an employee retires or is retired on medical grounds after serving for one year.d.When an employee dies after serving for one year.e.When an employee has his/her services terminated for reasons other than gross misconduct and he/she has served for at least one year continuously.f.Gratuity payable under this agreement shall be at the rate of thirty one per cent (31%) of the employee’s monthly basic salary for the number of months worked with the University.g.…Under clause (e ) above, parties agreed that an employee, whose employment is terminated for reasons other than gross misconduct, has served for at least one year continuously, gratuity is payable. In my humble review, the court reading of these provisions, employees on fixed term contract which go beyond one year, at the end of term, the benefit of gratuity accrue.

31. The grievants worked for the respondent for periods beyond one year as outlined above. Employment terminated. It was not as a result of gross misconduct so as to deny them the benefits under clause 25. 0 of the CBA.

32. Accordingly, the grievants are all entitled to payment of gratuity for the entire period of service at the rate of 31% of the employee’s monthly basic salary for the total number of months worked with the respondent in terms of clause 25. 0 of the CBA.

33. The tabulation of the claims at Ksh.25,910,295. 80 is hereby confirmed.

32. The claimant is also entitled to costs of this suit.

DELIVERED IN OPEN COURT AT MOMBASA THIS 29 DAY OF JUNE, 2023. M. MBARŨJUDGE