[2015] KEHC 999 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU

CAUSE NO. 111 OF 2015

(Originally Nairobi Cause No. 236 of 2012)

KENYA UNION OF DOMESTIC, HOTELS, EDUCATIONAL

INSTITUTIONS, HOSPITALS & ALLIED WORKERS CLAIMANT

v

BOARD OF GOVERNORS,

SOLAI SECONDARY SCHOOL RESPONDENT

JUDGMENT

Winnie Njuguini Kiaro (Grievant) was appointed as Stores Clerk II by the Board of Governors, Solai Secondary School (Respondent) through a letter dated 9 May 1989.

The Respondent, through a letter dated 6 September 1993 assigned her more duties (collecting school fees, recording fees register and extracting fee proformas). In 1996, her wage was adjusted

Around 11 August 1998, the Grievant wrote to the Respondent seeking extra remuneration due to the added duties and the Respondent’s Secretary responded on 11 September 1998 with a promise to place the request before the Respondent.

Sometime in 2001, the Grievant made another attempt to get acting allowance but it appears she was not successful.

On 28 February 2002, the Grievant notified the Respondent of her intention to take early retirement. The Respondent acknowledged receipt of the notification through a letter dated 16 March 2003 and sought clarifications.

On 28 March 2003, the Respondent accepted the Grievant’s early retirement but informed her that it would take time to organise her gratuity.

On 9 July 2004, the Grievant wrote to the Respondent demanding underpayments and acting allowance.

Again, it appears no agreement was reached and the Grievant’s Union, the Kenya Union of Domestic, Hotels, Educational Institutions and Allied Workers (KUDHEIHA) reported a trade dispute to the Minister for Labour. A Conciliator was appointed.

After listening to both the Union and the Respondent, the Conciliator recommended through a report dated 11 May 2010 that the Grievant be paid gratuity of 30 days for each completed year of service and a special duty allowance at the rate of two thirds of the difference between her basic salary and that of the post of bursar for a period of 25 months.

It is apparent the Respondent did not accept the recommendations for on 14 February 2012, KUDHEIHA commenced legal proceedings against the Respondent. The issue in dispute was stated as non-payment of service gratuity and other allowances to Winnie Njuguini Kiaro.

According to an affidavit of service filed in Court on 6 March 2012, the Respondent was served with Notice of Summons and Pleadings. The Respondent despite the service did not file a Response.

The Cause was mentioned severally in Court in Nairobi but the Respondent did not attend any of the sessions.

On 23 March 2015, Wasilwa J directed that the Cause be transferred to Nakuru.

On 5 May 2015, the Cause was mentioned before me and because the parties were absent, I directed the Deputy Registrar to notify the parties to appear on 25 May 2015 for directions. KUDHEIHA appeared and sought a hearing date.

The Court fixed the Cause for hearing on 28 October 2015 with a directive to KUDHEIHA to serve a hearing notice.

According to an affidavit of service filed in Court on 15 October 2015, the Respondent was served and it acknowledged service of the hearing notice but it did not send a representative to Court on the date fixed for hearing.

The Cause thus proceeded for hearing as undefended Cause (no Response was filed) and without participation of the Respondent.

The Grievant testified and gave a narration of her employment and early retirement. The documents filed together with the Memorandum of Claim were produced as exhibits.

Due to the fact that no Response was filed and that the Respondent failed to attend the hearing, there is no real dispute as to the facts as pleaded and testified to.

The duty of the Court in the circumstances is to examine whether the reliefs sought by the Grievant are merited.

The Grievant in the main had 3 heads of claims. Underpayments (acting allowance cum basic salary and house allowance), and service gratuity.

The parties went through conciliation. They made submissions before the Conciliator who thereafter came up with recommendations.

On service gratuity, the Grievant sought a total of Kshs 78,195/-. Clause 31 of the collective bargaining agreement in place provided for service gratuity and when it was payable. The Grievant served for more than 10 years and she qualified for the gratuity.

On acting allowance, the Grievant sought a total of Kshs 216,812/-.

The Court finds no merit on the claim, which is based on the civil service rates as the Grievant did not establish that the Circular from the Directorate of Personnel Management pleaded applied to her.

Clause 21 of the collective bargaining agreement provided for a special duty allowance. The provision provided for the formula for calculating the same and the Conciliator recommended that the same be paid to the Grievant in consideration of the duties she performed over and above the agreed tasks.

The Court will agree with the Conciliator that the Grievant is entitled to a special duty allowance instead of acting allowance. Because this was not computed, the Court directs the County Labour Officer to compute the special duty allowance and file a report within 10 days with the Court.

The Grievant also sought Kshs 61,800/- on account of house allowance. There is no merit to this claim as substantively, the Grievant was only acting and the special duty allowance covered her contractual entitlements.

Conclusion and Orders

The Court finds and holds that the Grievant is entitled to

gratuity allowance of Kshs 78,195/- and

special duty allowance for 25 months.

The County Labour Officer to compute the special duty allowance and file a report in Court within 10 days.

Mention on 14 December 2015 to confirm report from County Labour Officer and further orders.

Each party to bear own costs.

Delivered, dated and signed in Nakuru on this 4th day of December 2015.

Radido Stephen

Judge

Appearances

For Claimant/Grievant Mr. Ombima, Assistant Secretary General, KUDHEIHA

Respondent did not appear

Court Assistant Nixon