[2001] KEELRC 12 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MILIMANI LAW COURTS

(Before: Charles P. Chemmuttut,J.,

S.M. Maithya & P.P. Ooko, Members.)

CAUSE NO.52 OF 1998.

M.P. SHAH HOSPITAL..............................................................................Objectors

- v -

KENYA UNION OF DOMESTIC, HOTELS,EDUCATIONAL INSTITUTIONS,

HOSPITALS& ALLIED WORKERS.......................................................Respondents

Issue in Dispute:-

“Termination of Mrs. Martha Wanjiru”.

L.W. Kariuki, Senior Executive Officer, F.K.E., for the Objectors (hereinafter called the Hospital).

J.O. Kombewa, Deputy Secretary General, for the Respondents (hereinafter called the Union).

PRELIMINARY OBJECTION.

This dispute was referred to the Court by the Minister for Labour on 14th May, 1998 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 said 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 20th May 1998, and the dispute was listed for mention on 11th January, 1998 when Mr. J.N. Namasake appeared for the Hospital but there was no appearance for the Union. In the circumstances, the case was listed for another mention on 17th June, 1998 when Messrs T. Murungi and L.W. Kariuki, who appeared for the Union and the Hospital respectively,were directed to submit or file their respective written memoranda or statements on or before 2nd and 21st July 1998, and the dispute was fixed fro hearing on 11th August, 1998. The Union submitted their memorandum on 3rd August 1998, but the Hospital did not file their statement as directed. Consequently, the matter was adjourned on several occasions by mutual agreement of the parties. On 25th February 1999, the Hospital raised a Preliminary Objection challenging the maintainability and validity of this dispute on the ground that, pursuant to her individual or personal contract of service with them (Hospital), Mrs. Martha Wanjiru Karuithi (who is hereinafter called the grievant) was at the time of her termination serving in a superior or managerial position, and, therefore, she was excluded from Union representation as she was neither an “employee” nor did her alleged grievance constitute a “ trade dispute” as defined under Section 2 of the Act. It was alleged that, at the time of her termination of service on 5th September, 1994 on account of disobedience of lawful orders, the grievant was earning a gross salary of Kshs.11,330/= per month, which was well above the highest paid long serving unionisable employee in the Hospital, plus a free three-roomed and self-contained house. The Union filed their reply thereto on 9th April 1999, in which they contended that the grievant was a bona fide member of the Union, and, therefore, urged the Court to overrule the Preliminary Objection and proceed to consider the dispute on its own merits.

The Preliminary Objection was heard on 7th May, 23rd June and 29th July, 1999.

The case of the Hospital was that the grievant was employed by them as a Cateress on part-time basis on 12th September, 1979 at a salary of Kshs.800/= per month; and in accordance with the terms and conditions of her service, she was entitled to an annual increment in July each year whereas the unionisable employees received their annual increment in April each year . On 1st November 1981, the grievant was engaged as such (Cateress) on full time basis at a monthly salary of Kshs.1,950/= against Kshs.890/=, plus Kshs.135/= house allowance, i.e. a total of Kshs.1,025/= per month, payable to the highest-paid long serving unionisable employee in the Hospital. She was also provided with a three-roomed and self-contained house at the Hospital’s dispensary on Ronald Ngala Street, Nairobi. Furthermore, the grievant was subject to a probationary period of three(3) months and entitled to thirty(30) days annual leave while unionisable employees were subject to a probationary of two(2) months and entitled to twenty-five(25) days annual leave. In terms of Clauses 7 and 8 of her letter of appointment, the grievant was also required to abide by the Hospital’s Standing Orders applicable to managerial staff and not to disclose any secrets or confidential matters to anyone not authorized to receive them. Mr. Kariuki pointed out that in July 1990, the grievant’s salary was reviewed, and in addition she was henceforth awarded a car allowance of Kshs.2,000/= per month, which was exclusively enjoyed by the managerial staff.

Mr. Kariuki submitted that the grievant was the overall in-charge of kitchen operations and her primary duties and responsibilities included, inter alia, ensuring that the patients were provided with good quality food as recommended by the doctors and dietician in accordance with the needs of each patient; allocation and supervision of duties in the department; participation in the recruitment of kitchen staff, allocation of duties to them, appraisal of their performance and maintaining staff discipline; preparing duty roster for subordinate staff; maintaining an accurate inventory of all Hospital equipment and crockery in the kitchen and wards, and had access to highly confidential medical records, etc. He submitted further that while in employment, the Hospital neither operated a check-off system in favour of the grievant, nor did the Union inform them (Hospital) that she was their(Union) member and that she was making her monthly membership contributions direct to their Head Office. In the circumstances, the grievant was, therefore, a member of the management staff, and as such she was subject to the terms and conditions of service which were stipulated in her personal contract of employment with the Hospital. Mr. Kariuki pointed out that the position of a Cateress has never been listed or classified or incorporated in all the relevant parties’ collective agreements for the duration of her employment with the Hospital, particularly for the period 1993 to 1995, when the dispute arose and under active consideration by the Ministry of Labour, and that the parties have all along been cognisant of the fact that the grievant’s position was non-unionisable. After all, the Union did not raise the question of her termination of service at the Local Works Committee level as provided for in the parties’ Recognition Agreement because they knew that she was not their member.

Mr. Kariuki contended further that, while the Hospital recognized the right and freedom of an individual or employee to join and associate with a trade union of his or her own choice, only unionisable employees are eligible so as to maintain industrial peace and harmony. Therefore, the Court should not allow itself to be used by unscrupulous and crafty employees and unions in seeking redress on non-existent and baseless grievances. In support of the foregoing, he relied on Cause No.60 of 1996, between the same parties in which I upheld the Preliminary Objection and rejected the demand by the Union as not maintainable. Mr. Kariuki also took issue with and strongly objected to the purported letter of appointment attached to the Union’s submission, Appendix C I, on the ground that the specimen signature of the then Hon. General Secretary to the Hospital Board, the late Dr. H.H. Kamdar, was different from the signature on the grievant’s letter of appointment (see Hospital’s Appendix R.IIB). Thus, the purported letter of appointment, Appendix C.I, was a forgery.

Mr. Kariuki, therefore, prayed that the Preliminary Objection be upheld and the dispute be rejected as not properly before the Court and also not maintainable.

In reply, Mr. Kombewa submitted that the grievant has been a bona fide member of the Union for more than 10 years as shown in her letter of appointment, Appendix C.I, and for this reason her post of Cateress, which was similar to that of Housekeeper or Dietician, fell in a unionisable grade. He contended that the grievant paid her membership contributions directly to the Union, and maintained that the parties’ recognition agreement, the Industrial Relations Charter and Section 80(1) of the Constitution of Kenya, accord full and inalienable freedom and right to the grievant to join and associate with a trade union of her own choice; and in the circumstances, the grievant was entitled to the membership of the Union and to seek redress in this Court. Mr. Kombewa pointed out that the enhanced salary of Kshs.11,330/= and other benefits which were accorded to the grievant were personal to her because of the heavy or higher responsibilities she handled, and that did not mean that she was enjoying similar terms and conditions of service which were accorded to the management staff as alleged by the Hospital. He stated that there was nothing confidential and sensitive about her position as a Cateress because what she was doing did not involve either decision-making or disciplinary matters. In any case, he said, the dispute has been processed through all the stages of industrial relations machinery and that it is late in the day for the Hospital to raise a Preliminary Objection to the dispute. Mr. Kombewa relied on Cause No.95 of 1986 between the Union and the Presbyterian Church of East Africa (P.C.E.A. Chogoria Hospital) in which the issue in dispute was the failure by the Hospital to institute a medical board to examine and recommend whether or not Mr. Gerald Murunge could be retired on medical grounds. He also objected to the production of the letter of appointment, Appendix R.I, which was attached to the submission of the Hospital in support of their Preliminary Objection on the ground that the issue had not been raised before and that the deceased, the late Dr. H.H. Kamdar, who signed it, would not be available to give evidence on it.

Mr. Kombewa, therefore, urged the Court to find that the Preliminary Objection was baseless, and prayed that the same be rejected and the dispute be heard on its own merits.

The question for consideration and determination in this matter is whether the grievant was employed in a position of management as alleged by the Hospital or whether she was a unionisable employee within the meaning of the definition given under Section 2 of the Act and for whom the Union could raise a trade dispute. Admittedly, the grievant was employed as a Cateress in September 1979; and, according to Mr. Kariuki for the Hospital, her terms and conditions of service were of a managerial cadre, while Mr. Kombewa for the Union contended that her terms and conditions of service were covered by the relevant collective agreements between the parties in force at the material time. On this score, both parties relied on Appendices C.I and R.I, re: Letters of Appointment, of their respective submissions; and, although the genuineness and authenticity of these letters were in dispute, the specific duties entrusted to the grievant were not stipulated therein; but it was only stated in both letters of appointment that she would perform the duties entrusted to her from time to time to the best of her ability. At the time of her termination on 5th September 1994, the grievant was earning a salary of Kshs.11,330/= per month, while an Artisan, with Government Trade Test Certificate, Grade I, under unionisable Job Group IX, earned Kshs.3,340/= per month. The organizational chart on the record, Appendix R V, shows that the grievant had 17 subordinate staff, i.e. I Head Cook, I Assistant Head Cook, 6 Cooks, 4 Kitchen Supervisors, 2 Stores Clerks and 3 Cleaners, to whom she allocated duties, oversaw their performance, disciplined them, etc. In their submission to the Investigator, the management of the Hospital had also maintained that the grievant “was not a member of the union and the contract of service was between her and the Hospital administration”. In other words, the grievant was a member of the management staff, and she was, therefore, subject to the terms and conditions of service which were stipulated in her personal contract of employment with the Hospital.

In order to appreciate the rival contentions of the parties, it would be useful to reproduce the definitions of the words “employee” and “trade dispute” as given under Section 2 of the Act. The definitions are as hereunder:-

‘ “employee” means …………………………………..

(a)any person who has entered into or works under a contract with an employer, whether the contract is for manual labour, clerical work or otherwise, is expressed or implied, is entered into orally or in writing, and whether it is contract of service…………………… ……………………………..………………………………………………………………………………….,

(b)…………………………………………………………………………………………………………………..’

We are not concerned with the rest of the definition or meaning.

‘ “trade dispute” means a dispute or difference between employers and employees, or between employees and employees, or between employers and trade unions, or between trade unions and trade unions, connected with the employment or non-employment, or with the terms of employment, or with the conditions of labour, of any person and includes disputes regarding the dismissal or suspension of employees, the redundancy of employees, allocation of work or recognition agreements; and it also includes an apprehended trade dispute’.

In my view, both “manual labour” and “clerical work”, in the sense that these terms are used here, connote that they are more or less routine work, not requiring any great amount of initiative, imagination, direction, control and supervision in discharging the same. Therefore, those employed in supervisory, administrative or managerial capacity are excluded from the scope of the definition of the word “employee”. Thus, it is the nature of the duties that are performed by an employee which determine his or her status as to whether he or she is an “employee” within the meaning assigned to it under Section 2 of the Act. It may also be relevant at this juncture to reproduce the meaning or definition of the word “employer” under Section 2 of the Employment Act, Cap.226 of the Laws of Kenya, which runs as follows:-

‘ “Employer” means any person or public body or any firm or corporation or company, who or which has entered into a contract of service to employ an individual, and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company’.

It was argued by Mr. Kariuki on behalf of the Hospital that the grievant was a person employed in a position of management, and her job was that of an officer having control over other employees, with power to make complaints against and discipline them in an administrative capacity. In my opinion, the words “a person employed in a position of management” do not imply that in order to fall within these words the person must be performing managerial duties or that any person who is himself or herself subject to overall supervision of a superior officer would not be covered by these words. Though there may be one person acting in general management or control of an establishment, there would be, in a large establishment like the Hospital in this case, several others who would be in management or control of particular departments of the establishment and are excluded from the provisions of the Act and the Industrial Relations Charter. An individual dispute between an employer and an employee does not, therefore, become a “trade dispute” as defined hereinabove merely because it has been sponsored by other employees or a Trade Union unless (a) there is a community of interest between the aggrieved employee and the body of manual or clerical employees, and (b) that the community of interest must exist at the time when the act of the employee giving rise to the dispute had taken place and should not have arisen at a later date. In any case, those sponsoring his or her cause must be in the same employment, in the same association or Trade Union and with the same class of rights. Mere sympathy for the aggrieved employee would not be sufficient.

As I have stated hereinabove, it was the nature of the grievant’s duties which determined her status and not her designation. On careful perusal of the duties and functions of the grievant, I find no material to show that her terms and conditions of service were in any way unionisable; and no substantial counter-arguments were advanced by Mr. Kombewa on behalf of the Union on the point raised by Mr. Kariuki for the Hospital that the grievant was not a unionisable employee under the Act. She had 17 employees under her charge and her salary was higher than that of the highest-paid long serving Artisan, with Government Trade Test Certificate, Grade I, under unionisable Job Group IX. Furthermore, her terms and conditions of service were personal and exclusively applicable to her as a member of the managerial staff. There was also no community of interest between the grievant and the body of the unionisable employees who were composed of manual and clerical employees.

With the foregoing discussion in view, I uphold the Preliminary Objection and reject the dispute as incompetent and not maintainable. Finally and needless to say, I must, in these circumstances, advise the grievant to collect her terminal benefits from the Hospital in accordance with the terms and conditions of her appointment, if she has not already done so.

MEMBERSWe concur.

DATED and delivered at Nairobi this 17th day of January, 2001.

Charles P. Chemmuttut,

JUDGE.