[2021] KEELRC 1042 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NUMBER E569 OF 2020

BETWEEN

KENYA UNION OF DOMESTIC, HOTELS EDUCATIONAL INSTITUTIONS

& HOSPITALWORKERS UNION [KUDHEIHA]............................ CLAIMANT

VERSUS

RESORT KENYA LIMITED........................................................... RESPONDENT

RULING

1. There are 3 main prayers sought by the Claimant Union, through its Application dated 22nd September 2020. The Application is founded on the Affidavit of General Secretary, Albert Obed Njeru, sworn on even date.

2. The first of the main prayers in worded in unclear language. It reads as follows: -

[2] The Honourable Court be pleased to issue orders compelling the Respondent to remain in paying monthly salary according 50% pay cut terms implemented in the month of April 2020, as from the month of May 2020, paying arrears of May, June, July, August 2020 and continue with payment for the subsequent months pending hearing and determination of this Application.

3. The other 2 main prayers in the Application are fairly comprehensible. They are: -

[3] The Honourable Court be pleased to issue orders restraining the Respondent from coercing, harassing, intimidating, or otherwise unlawfully declaring redundant services of the Claimant members pending hearing and determination of the Application.

[4] The Honourable Court be pleased to issue orders compelling the Respondent to pay full and final dues as per the Collective Bargaining Agreement upon closure of operations.

4. There is a Statement of Claim filed on the same date with the Application. The substantive prayers are: -

a. Orders compelling the Respondent to avail pay 50% of salaries to all staff as from the month of May 2020 to-date. [the language again is unclear]

b. In the alternative, the Respondent to pay redundancy terminal benefits to all staff according to the CBA.

c. Costs and Interest.

5. General-Secretary Njeru explains in his Affidavit that Parties have a Recognition Agreement, and a CBA dated 17th April 2018. On 25th March 2020, the Respondent issued Internal Memo to all its Members of Staff. Through the Memo, Staff were informed of the decision by the Government to close all gaming premises, in the wake of Covid-19 pandemic. The Respondent was compelled to close all its 3 Branches, and was left without any revenue streams. The Memo advised that all affected Employees would be paid 50% of their April 2020 salaries. Employees were placed on paid annual leave for the rest of March 2020. Their salaries for March 2020 were not affected.

6. Come May 2020 and the Respondent issued another Internal Memo dated 18th May 2020. The Memo states that the Government had refused casinos to reopen, while the Banks were unwilling to finance casinos to bridge the revenue chasm created by Covid-19. The Memo advised Employees that the Respondent would not be able to pay any salaries from May 2020, a decision which triggered filing of this Claim.

7. According to the General-Secretary this decision was made in disregard of the existing Labour Agreements and a Tripartite Agreement concluded by the Ministry of Labour, COTU-K and FKE, dated 30th April 2020. The Claimant wrote to the Respondent seeking consultation, but no positive response came from the Respondent. In the end the Claimant formed the view that the Respondent was taking advantage of the Covid-19 pandemic, to declare unlawful redundancies.

8. The Court has not traced a Replying Affidavit or Statement of Response filed by the Respondent, in the file, at the time of preparing this Ruling. It was agreed by the Parties that the Application is disposed of through Written Submissions. Ruling was reserved for 14th October 2021, but is ready in advance of that date, and Parties have been notified of its delivery, on the date indicated at the end of this Ruling.

9. Submissions filed by the Respondent indicate that a Replying Affidavit sworn by Paul Mbugu Kamau on 23rd March 2021 was filed. The Respondent submits also, that it has filed a Statement of Response of even date. Neither the Affidavit, nor the Statement of Response are in the physical file, at the time of preparing this Ruling. The Claimant submits that the Claim, and the Application are undefended.

10. If a Party files Pleadings or Documents, through e-filing, it should follow up in ensuring that these are in the physical file. It cannot be left to the Court to finance downloading of the e-files. Parties ought to pay the costs associated with downloading e-files and ensure their e-files are in the physical file. Otherwise the record, even for purposes of Appeals, ends up being incomplete or totally confusing. The Respondent shall follow-up with the Registry and ensure its Pleadings and Documents are in the physical file.

11. From its Submissions, the Respondent’s position is that it is true, Internal Memos as pleaded by the Claimant, were issued by the Respondent.

12. The Claimant however, has jumped the gun, by presenting this Claim, in total disregard of the Parties’ dispute settlement procedure, prescribed in their Recognition Agreement.

13. Page 5 of the Recognition Agreement dated 2nd September 2014, creates an exhaustive Negotiation Procedure. It provides for what should happen, in event negotiation does not yield settlement. Clause 7[d] [i] provides that, ‘’ in the event of failure to reach a settlement at the committee level, either Party may refer the dispute to the Minister of Labour in accordance with the provisions of the Labour Relations Act, 2007. ’’

14. The Respondent urges the Court to decline jurisdiction, until Parties have exhausted their dispute settlement procedure.

The Court Finds: -

15. There is a dispute settlement procedure contained in the Parties’ Recognition Agreement, which the Parties have not exhausted, and which must be exhausted, before the Court can assume jurisdiction.

16. If there is no settlement after negotiation, the Parties must do what the Recognition Agreement bids them to do.

17. There is no reason for the Court to assume jurisdiction prematurely.

18. The mechanism in the Recognition Agreement is supported by the Tripartite Memorandum of Understanding dated 30th April 2020, exhibited by the Claimant, which calls on Employers and Employees to rely on existing mechanisms of social dialogue, in dealing with the problem of Covid-19 at the workplace.

19. The Parties were constantly engaged in negotiations, even as the litigation has been going on. The Court is persuaded they can resolve this dispute at their own level, in particular because the Claimant is open to the Respondent declaring redundancies, and paying terminal benefits in accordance with the CBA, as pleaded in the Claim and the Application. If it is not possible to rescue the Claimant’s Member’s jobs through negotiations, the Claimant has accepted redundancy with full redundancy packages. So why prolong the dispute in Court?

IT IS ORDERED: -

a. The Court stays its proceedings, and directs Parties to exhaust internal dispute settlement procedure under their Recognition Agreement.

b. Parties may, during that process in particular consider the Claimant’s alternative prayer in the Claim filed herein, for declaration of redundancies.

c. Parties shall move the Court upon exhaustion of their internal dispute settlement procedure or whenever necessary, for further orders.

DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY, UNDER MINISTRY OF HEALTH AND JUDICIARY COVID-19 GUIDELINES, AT NAIROBI, THIS 10TH DAY OF SEPTEMBER 2021

JAMES RIKA

JUDGE