[2017] KEELRC 1318 (KLR)
The Court found that, despite the Claimant's assertion that the 27 employees were employed by Galot Estate, the evidence showed that the Claimant had issued pay slips to these individuals during the relevant period. The Claimant failed to provide a substantive explanation for the inconsistency between the...
Source-derived case information.
- Citation
- [2017] KEELRC 1318 (KLR)
- Parties
- Applicant: London Distillers (K) Limited; Respondent: Kenya Union of Commercial Food and Allied Workers
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1639 of 2016
- Procedural Posture
- Labour Cause / Ruling on Implementation of Consent Order
- Outcome
- Claimant directed to pay the 2nd instalment of the 17% wage increment to the 27 employees within 30 days.
- Judges
- L Ndolo
- Legal Topics
- Wage Increment, Collective Bargaining Agreement, Industrial Action, Employee Status
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
London Distillers (K) Limited
Applicant
Kenya Union of Commercial Food and Allied Workers
Respondent
Procedural Posture
Labour Cause / Ruling on Implementation of Consent Order
Legal Issues
- 1 Whether the Claimant failed to implement the 17% wage increment for the specified employees as per the consent order.
- 2 Whether the 27 employees in question were employees of the Claimant or of Galot Estate at the material time.
Ratio Decidendi
The Court found that, despite the Claimant's assertion that the 27 employees were employed by Galot Estate, the evidence showed that the Claimant had issued pay slips to these individuals during the relevant period. The Claimant failed to provide a substantive explanation for the inconsistency between the appointment letters and the pay slips. The Court accepted the Respondent's uncontested submission that the 27 employees had already benefited from the first instalment of the wage increment, indicating that they were treated as employees of the Claimant. Accordingly, the Court held that the Claimant was obligated to effect the second instalment of the 17% wage increment for the 27...
Court Disposition
Claimant directed to pay the 2nd instalment of the 17% wage increment to the 27 employees within 30 days.
Orders
- The Claimant is directed to effect the 2nd instalment of the 17% wage increment in favour of the 27 employees within 30 days from the date of this ruling.
- No order as to costs.
Full Case Text
Judgment text and source record
56 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO 1639 OF 2016
LONDON DISTILLERS (K) LIMITED...................................CLAIMANT
VERSUS
KENYA UNION OF COMMERCIAL
FOOD AND ALLIED WORKERS...................................RESPONDENT
RULING
1. This matter first came to Court on 16th August 2016 when the Claimant sought orders prohibiting the Respondent Union from calling its members to industrial action. Upon hearing Counsel for the Respondent ex parte I certified the matter urgent and set it down for inter partes hearing on 19th August 2016.
2. On 19th August 2016 the parties recorded the following consent;
a. That the Claimant would effect a 17% wage increment for the Respondent’s members for the year 2016/2017 with effect from 1st May 2016;
b. That the other terms would be negotiated and agreed upon within three (3) months;
c. That the negotiations would be facilitated by a new Conciliator to be appointed by the Chief Industrial Relations Officer;
d. That the Respondent would call off the strike by 23rd August 2016.
3. The Respondent subsequently complained that the Claimant had failed to implement the 17% wage increase for the following seventeen (17) employees:
i. Peter Miringu
ii. Stephen Lolori
iii. Josphat Okari
v. Richard Simiyu
v. Lameck Mogaka
vi. Jackson Ambunya
vii. Jairo Ambwere
viii. William Nyakundi
ix. Stephen Musyoka
x. James Kamundia
xi. Moses Mbinda
xii. Ernest Obati
xiii. Justus Opati
xiv. Simon Makori
xv. Dominic Kinywa
xvi. Joseph Kioko
xvii. Aaron Musyoka
xviii. Duke Onkware
xix. George Kimani
xx. Geoffrey Walela
xxi. Nelson Musasia
xxii. Calistus Wekesa
xxiii. Joseph Musyoka
xxiv. Samuel Gitau
xxv. Simon Mboga
xxvi. David A. Okore
xxvii. Harrison Tuti
4. On its part, the Claimant maintains that all the unionisable employees had been paid. In light of the divergent positions taken by the parties, I directed them to file submissions on this issue which is the subject of this ruling.
5. In the submissions filed by the Claimant on 6th March 2017, it is submitted that the 27 persons in issue are employees of Galot Estate and not the Respondent. The Claimant adds that Galot Estate was engaged in pre-recognition communication with the Union.
6. In support of its case the Claimant produced letters of appointment issued to the 27 persons on the letterhead of Galot Estate Kiambu. The Court however also saw pay slips issued by the Claimant to these same persons. The Claimant terms this as an administrative error.
7. The letters of appointment date between 1998 and 2015 while the pay slips date between 2016 and 2017. Without any substantive explanation of this inconsistency, the Court formed the opinion that as at the time this dispute arose the 27 persons were employees of the Claimant. This is buttressed by the submission by the Respondent, which the Claimant did not contest, that the 27 employees had benefited from the 1st instalment of the 17% wage increment prior to the dispute.
8. In light of the foregoing finding, the Claimant is directed to effect the 2nd instalment of the 17% wage increment in favour of the 27 employees within the next 30 days from the date of this ruling.
9. I make no order for costs.
10. Orders accordingly.
DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 26THDAY OF MAY 2017
LINNET NDOLO
JUDGE
Appearance:
Mr. Sang for the Claimant
Mr. Owiyo for the Respondent