[2002] KEELRC 28 (KLR)
The court found that the grievant was entitled to the claimed terminal benefits, including house allowance, underpayment, and annual increments, as the respondent failed to contest the Union's evidence or provide any justification for non-payment. The Teachers Service Commission Code of Regulation governed the...
Source-derived case information.
- Citation
- [2002] KEELRC 28 (KLR)
- Parties
- Applicant: Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers; Respondent: Kikuyu Day Secondary School
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 42 of 2001
- Procedural Posture
- Employment Dispute / Ex Parte Final Award
- Outcome
- Award in favour of the applicant; respondent to pay outstanding terminal benefits.
- Legal Topics
- Terminal Benefits, House Allowance, Salary Underpayment, Annual Increment, Teachers Service Commission Regulations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers
Applicant
Kikuyu Day Secondary School
Respondent
Procedural Posture
Employment Dispute / Ex Parte Final Award
Legal Issues
- 1 Whether the grievant was entitled to house allowance from January 1976 to August 1982.
- 2 Whether the grievant was underpaid during his employment period from January 1976 to August 1982.
- 3 Whether the grievant was entitled to annual increments for the period in question.
Ratio Decidendi
The court found that the grievant was entitled to the claimed terminal benefits, including house allowance, underpayment, and annual increments, as the respondent failed to contest the Union's evidence or provide any justification for non-payment. The Teachers Service Commission Code of Regulation governed the grievant's employment, and the calculations provided by the Union were accepted as accurate and unchallenged. The respondent's failure to participate in the proceedings, despite proper notification and opportunity, left the Union's case uncontroverted. Accordingly, the court awarded the sum of Kshs.84,365 to the grievant as outstanding terminal benefits.
Court Disposition
Award in favour of the applicant; respondent to pay outstanding terminal benefits.
Orders
- The respondent shall pay the grievant, Mr. Benson Gicho Karui, the sum of Kshs.84,365 as outstanding terminal benefits.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA
AT NAIROBI.
(Before: Charles P. Chemmuttut, J.,
J.M. Kilonzo & A.K. Kerich, Members.)
CAUSE NO.42 OF 2001.
KENYA UNION OF DOMESTIC, HOTELS, EDUCATIONAL
INSTITUTIONS, HOSPITALS & ALLIED WORKERS……………………Claimants.
-v -
KIKUYU DAY SECONDARY SCHOOL……………………………………Respondents.
Issue in Dispute:-
“Refusal by the Board of Governors (BOG) to pay Mr. Benson Gicho Karui (hereinafter called the grievant) the following:
1. House Allowance from January, 1976 to August, 1982.
2. Underpayment from January 1976 to August, 1982.
3. Annual Increment from January, 1976 to August, 1982. ”
Mwari S. Njiru, Industrial Relations Officer, for the Claimants (hereinafter called the Union).
No appearance for the Respondents (hereinafter called the School).
A W A R D.
The Minister for Labour referred this dispute to the Court for consideration and determination on 24th April, 2001 in exercise of the powers 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 certificate from the Labour Commissioner under Section 14, subsection (9)(e) of the Act, were received by the Court on 3rd May, 2001. The dispute was then listed for mention on 18th May, 2001 when Mr. J.O. Kombewa appeared for the Union but there was no appearance for the School. In the circumstances, the case was listed for another mention on8th June, 2001 when Mr. Kombewa again appeared for the Union, but once again there was no appearance for the School. In spite of the absence of the latter, however, the parties were directed and also notified to submit or file their respective written memoranda or statements on or before 28th June and 27th July, 2001, and the dispute was fixed for hearing on 23rd August, 2001. The parties did not submit or file their memoranda or statements as directed, and on the said date, i.e. 23rd August, 2001, the matter was stood over generally. On 20th September, 2001, Mr. E. Kaka, on behalf of theHon. Attorney General, filed a Notice of Appointment, dated 24th August,
2001, to act for the School in this matter. The Union belatedly submitted their memorandum on 7th February, 2002. On 11th February, 2002, the dispute was brought up for another mention on 21st February, 2002, but there was no appearance for the parties and the case was listed for a further mention on 11th April, 2002. On this occasion, Mr. Mwari S. Njiru appeared for the Union; and despite his absence, the Hon. Attorney General was granted an extension to file his reply statement on or before 10th May, 2002, and the dispute was fixed for hearing on 20th June, 2002. The Hon. Attorney General was also properly notified of this arrangement, but he neither filed his reply statement nor appeared throughout the entire proceedings of this case and no reasons were given for his failure to file the same or appear. The dispute was, therefore, heard ex parte on the said date, i.e. 20th June, 2002.
The case of the Union was that the grievant, who served the School as a teacher with a clean or unblemished employment record between January 1976 and September 1982, tendered his resignation but suffered the following terminal entitlements:-
(a) House allowance. Kshs.48,600/=
(b)Terminal benefits in accordance with the
Teachers Service Commission Code of
Regulation, Chapter XI, Rule 74, Appendix
8:Kshs.1,070/= x 5 x 7 years. Kshs.37,450/=
(c)Underpayment of salary from January,
1976 to September, 1982 @ Kshs.90/= x 81
months.“ 7,290/=
(d)Underpayment on increment of Kshs.35/=
instead of Kshs.60/= per month from January
1976 to September 1982: i.e. Kshs.25/= x 81
months.“ 2,025/=
Total Kshs.95,365/=
Less amount paid - “ 11,000/=
Amount due to him Kshs.84,365/=.
The dispute was reported to the Minister for Labour who, after the usual investigation, recommended “that Mr. Karui be paid any difference in wages between the legal wages as per Teachers Service Commission salary scale and the actual wages he was paid during the period of his employment if any”.
Since the Hon. Attorney General for the School neglected or refused to file his reply statement, and also failed to appear during the proceedings in this matter despite having been notified to attend and state his case, I have no reason to disbelieve the case of the Union. In the circumstances, therefore, I award that the grievant be paid his outstanding terminal benefits of Kshs.84,365/= as shown hereinabove.
On consultation, the Members of the Court concur with this decision.
DATED and delivered at Nairobi this 16th day of October, 2002.
Charles P. Chemmuttut,
JUDGE.