[2001] KEELRC 5 (KLR)

IN THE INDUSTRIAL COURT OF KENYA

AT NAIROBI.

(Before: Charles P. Chemmuttut, J.

A.K. Kerich & H.B.N. Gicheru, Members.)

CAUSE NO. 36 OF 1999.

KENYA UNION OF ENTERTAINMENT

& MUSIC INDUSTRY EMPLOYEES …………………………Claimants.

-v-

FACTUAL FILMS (1974) LTD………………………………..Respondents.

Issue in Dispute:-

“Termination of M/S. Jackson Towett and Samuel Kiplang’at”.

J.M. Mucuha, Secretary General, for the Claimants (hereinafter called the Union).

No appearance for the Respondents (hereinafter called the Company).

A W A R D.

On 5th May, 1999 the Minister for Labour referred this dispute to the Court for adjudication and determination in exercise of the powers vested in him by Section 8 of the Trade Disputes Act, Cap.234, Laws of Kenya (which is hereinafter referred to as the Act). The reference, together with the statutory certificates from the Minister himself and the Labour Commissioner under Section 14, subsection (9)(e) and (f) of the Act, were received by the Court on 8th May 1999, and the dispute was listed for a mention on 19th May, 1999. On this occasion, Mr. Mucuha appeared for the Union but there was no appearance for the Company. In the circumstances, the case was listed for another mention on 16th June 1999, and the parties were duly notified to attend. Mr. Mucuha again appeared for the Union, but there was no appearance for the Company and the case was stood over generally. The matter was brought up for a further mention on 22nd September 1999, and the parties were notified to attend. Mr. Mucuha appeared for the Union but there was no appearance for the Company. The dispute was stood over generally once again, but it was brought up for yet a further mention on 18th October 2000, when Mr. Mucuha appeared for the Union but there was no appearance for the Company yet again. Despite the latter’s constant default or absence, the dispute was fixed for hearing on 1st February 2001, and meanwhile the Union were directed to submit their memorandum on or before 17th November 2000, while the Company were ordered to file their reply statement thereto on or before 18th December, 2000. The Company, having neither filed their reply statement nor appeared as stated hereinabove, the case was heard ex-parte on 1st February, 2001.

Mr. Mucuha submitted that Messrs. Jackson Towett and Samuel Kiplang’at (who are hereinafter called the grievants) were employed by the Company as drivers in 1984 and 1986 respectively; and at the time of their termination on 3rd May 1996 for alleged absence from duty, the grievants, who had clean employment records and were shopstewards earning Kshs.3,600/= and Kshs.3,000/= per month respectively. He stated that the grievants’ work schedule was that they left the Head Office for field work on every 2nd day of each month and returned on every 27th day of the same month, and took a break between the 27th day of the current month and the 2nd day of the succeeding month. On 27th April 1996, he said, the grievants returned from their field work as usual and parked their vehicles at the Head Office’s yard. But before they took their break, they informed the Managing Director that their vehicles required service. On their return for duties on 2nd May 1996, the grievants found that the vehicles had not been serviced; and in the circumstances, they could not undertake or go for their field duties. When the Managing Director was reminded about the service of the vehicles, he advised them to go home and report to him the following day, i.e. on 3rd May 1996. The grievants reported on duty as directed, but on their return they were surprisingly served with disciplinary letters, requiring them to explain why they had absented themselves from duties. The grievants submitted their explanations but these were not accepted as satisfactory. Hence their termination from service as aforestated (see Apps. I(a) & (b) II(a) & (b) and III(a) & (b) ).

The Union reported an informal trade dispute to the District Labour Officer, Industrial Area, Nairobi, and attempts to resolve the matter at that level failed because the Company refused or neglected to attend and did not even bother to send an apology for their absence (see App.IV). On 7th May 1996, the Union reported a formal trade dispute to the Minister for Labour in accordance with Section 4 of the Act. The Minister accepted the dispute and appointed Mr. J. Gatimu of Nairobi Labour Office to act as the Investigator. In his report which was released to the parties on 28th July 1997, the Minister recommended that both grievants “be paid their full terminal benefits and in addition 8 months compensation for loss of employment”. He(Minister) finally appealed to the parties to accept the recommendation as a basis of settlement of the dispute (see Apps V, VI & VII). It would appear that the Union accepted the recommendation, but the Company did not react thereto. Hence, this dispute for adjudication and determination.

Mr. Mucuha, therefore, urged the Court to find that the termination of the grievants amounted to victimization for their trade union activities, unjustified and in bad faith, and prayed that they be paid all their terminal benefits and twelve(12) months’ compensation for loss of employment in accordance with the calculations shown in App.IX of the Union’s submission.

The Company were absent during the entire proceedings of this case, and they did not even file any reply statement to the memorandum of the Union, despite having been notified to attend and file the same. They have also shown a recalcitrant attitude in the matter, and I find that the Union have proved their case to the hilt. In the circumstances, and as prayed for, the case is allowed ex-parte and the Company are directed to grant terminal benefits and compensation, less statutory deductions, to the grievants as shown below:-

(a)Mr. Jackson Towett.

(i)One month’s pay in lieu of notice Kshs. 3,600/=

(ii)Fifteen(15) days severance pay

for each completed year of service“ 21,600/=

(iii) One month’s leave “ 3,600/=

(iv)House allowance

@ Kshs.750 x 12 x 12“108,000/=

(v) Travelling allowance “ 1,500/=

(vi) Eight(8) months’ compensation “ 28,800/=

Total = Kshs.167,100/=

(b)Samuel Kiplang’at.

(i)One month’s pay in lieu of notice. Kshs. 3,000/=

(ii)Fifteen(15) days severance pay for

each completed year of service.“ 15,000/=

(iii)One(1) month’s leave. “ 3,000/=

(iv)House allowance @ Kshs.750x12x10. “ 90,000/=

(v)Travelling allowance. “ 1,500/=

(vi)Eight(8) months’ compensation. Kshs.24,000/=

Total = Kshs.136,500/=

The Company are ordered to deposit the same with the District Labour Officer, Industrial Area, Nairobi, to the credit of the grievants within twenty one(21) days from the date of this award.

On consultation, the Members concur with this decision.

DATED and delivered at Nairobi this 9th day of March, 2001.

Charles P. Chemmuttut,

JUDGE.