[2015] KEELRC 489 (KLR)
The court found that it had inadvertently applied the statutory minimum of one month's notice pay under Section 35 of the Employment Act, 2007, instead of the four months' notice pay stipulated in Clause 3(viii) of the applicable Collective Bargaining Agreement. This constituted an error apparent on the face of the...
Source-derived case information.
- Citation
- [2015] KEELRC 489 (KLR)
- Parties
- Applicant: Margaret Auma Ingwe; Respondent: Kenya Power and Lighting Co. Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 263 of 2013
- Procedural Posture
- Cause / Ruling on Application for Review of Award
- Outcome
- Application for review allowed; award varied to grant four months' salary in lieu of notice.
- Judges
- L Ndolo
- Legal Topics
- Unfair Termination, Collective Bargaining Agreement, Notice Pay, Review of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Auma Ingwe
Applicant
Kenya Power and Lighting Co. Ltd
Respondent
Procedural Posture
Cause / Ruling on Application for Review of Award
Legal Issues
- 1 Whether the court erred in awarding one month's salary in lieu of notice instead of four months as per the applicable CBA.
- 2 Whether the error constitutes an error apparent on the face of the record justifying review under Rule 32 of the Employment and Labour Relations Court (Procedure) Rules.
Ratio Decidendi
The court found that it had inadvertently applied the statutory minimum of one month's notice pay under Section 35 of the Employment Act, 2007, instead of the four months' notice pay stipulated in Clause 3(viii) of the applicable Collective Bargaining Agreement. This constituted an error apparent on the face of the record, justifying review under Rule 32(1)(b) of the Employment and Labour Relations Court (Procedure) Rules. The award was therefore reviewed to grant the Claimant four months' salary in lieu of notice, in addition to the compensation for unfair termination, and the total sum due to the Claimant was recalculated accordingly.
Court Disposition
Application for review allowed; award varied to grant four months' salary in lieu of notice.
Orders
- The award in favour of the Claimant is reviewed to include four months' salary in lieu of notice as per the CBA.
- Total award to the Claimant is Kshs.1,077,216.00.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO 263 OF 2013
MARGARET AUMA INGWE..........................................................CLAIMANT
VERSUS
KENYA POWER AND LIGHTING CO. LTD.............................RESPONDENT
RULING
1. By an award dated 5th June 2015, I entered judgment for the Claimant in the sum of Kshs.807,912. 00 made up Kshs.718,144. 00 being eight months' salary in compensation for unfair termination of employment and Kshs.89,768. 00 being one month's salary in lieu of notice.I also allowed the Respondent’s counterclaim in the sum of Kshs.642,618. 00.
2. The Claimant subsequently filed an application for review of the award on 19th June 2015. The application is based on the ground that the Court erroneously awarded the Claimant one month's salary in lieu of notice instead of the four months' salary set in the applicable Collective Bargaining Agreement (CBA).
3. In its grounds of opposition dated 28th September 2015 and filed in Court on even date, the Respondent stated that following the holding that the reason for termination of the Claimant's employment was valid, the Court proceeded to exercise its discretion to award the Claimant one month's notice pay instead of the four months set out in the CBA.
4. According to the Respondent, the four months' notice pay is only available when an employee is terminated for an offence that does not amount to gross misconduct. Further, the Claimant can only challenge the exercise of the discretion of the Court through an appeal and not an application for review.
5. The powers of this Court to review its own decisions are donated by Section 16 of the Employment and Labour Relations Court Act and Rule 32 of the Procedure Rules.
6. Rule 32(1) provides as follows:
32. (1) A person who is aggrieved by a decree or an order of the Court may apply for a review of the award, judgment or ruling—
(a) if there is a discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made; or
(b) on account of some mistake or error apparent on the face of the record; or
(c) on account of the award, judgment or ruling being in breach of any written law;
7. The decision to award the Claimant notice pay was informed by the finding that the termination of her employment was procedurally unfair. The Court however inadvertently applied the one month's notice pay set out under Section 35 of the Employment Act, 2007 instead of the four months' notice pay provided for under Clause 3(viii) of the CBA. This constitutes an error apparent on the face of the record.
8. The award in favour of the Claimant is therefore reviewed as follows:
8months' salary in compensation...............Kshs.718,144. 00
4month's salary in lieu of notice...................Kshs.359,072. 00
Total.................................Kshs.1,077,216. 00
9. Each party will bear their own costs.
10. Orders accordingly.
DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 30TH DAY OF SEPTEMBER 2015
LINNET NDOLO
JUDGE
Appearance:
Mr. Rakoro for the Claimant
Mr. Molenje for the Respondent