[2020] KEELRC 1753 (KLR)
The court found that the claimants were not declared redundant but were terminated following their refusal to either relocate to another department or take leave while the respondent overhauled its machinery and equipment. The union was fully involved in the process. The court determined that the claimants were...
Source-derived case information.
- Citation
- [2020] KEELRC 1753 (KLR)
- Parties
- Claimant: Serah Nthule Muthiani; Claimant: Alex Kissah Lucia; Claimant: Risky Muhati Shiole; Claimant: Elvis Baraza Wambani; Claimant: Lilian Nkatha Mugambi; Claimant: Ongeri Makori Clive; Claimant: Benard Shitindo Khayo; Claimant: Nelson Ogola Murubi; Claimant: Simon Nanzayi Achieya; Claimant: Linus Ouma Okongo; Claimant: Nelson Okelo Aloo; Respondent: Chandaria Industries Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 467,309, 316, 317,466,524,526,688,690,1347 & 1537 of 2015
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the claimants; monetary awards granted as per CBA calculations; costs to claimants.
- Judges
- DO Ogal
- Legal Topics
- Termination of Employment, Redundancy Procedure, Collective Bargaining Agreement, Severance Pay, Notice Pay, Employee Entitlements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Serah Nthule Muthiani
Claimant
Alex Kissah Lucia
Claimant
Risky Muhati Shiole
Claimant
Elvis Baraza Wambani
Claimant
Lilian Nkatha Mugambi
Claimant
Ongeri Makori Clive
Claimant
Benard Shitindo Khayo
Claimant
Nelson Ogola Murubi
Claimant
Simon Nanzayi Achieya
Claimant
Linus Ouma Okongo
Claimant
Nelson Okelo Aloo
Claimant
Chandaria Industries Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimants' termination amounted to redundancy or unlawful dismissal.
- 2 Whether the respondent complied with the Collective Bargaining Agreement (CBA) in effecting the terminations.
- 3 Whether the claimants are entitled to additional payments for notice and service beyond what was already paid.
Ratio Decidendi
The court found that the claimants were not declared redundant but were terminated following their refusal to either relocate to another department or take leave while the respondent overhauled its machinery and equipment. The union was fully involved in the process. The court determined that the claimants were entitled to notice and service pay as per the CBA, and that in some cases, the amounts paid by the respondent were insufficient, particularly regarding the calculation of notice and service pay for the relevant years of service. The court adopted the reasoning and calculations from a previous judgment (Cause No. 808 of 2015) and applied them to the present consolidated cases,...
Court Disposition
Judgment for the claimants; monetary awards granted as per CBA calculations; costs to claimants.
Orders
- Respondent to pay each claimant the balance of notice and service pay as calculated in the judgment.
- Respondent to pay costs of the suit to the claimants.
Full Case Text
Judgment text and source record
126 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
(Before Hon. Lady Justice Maureen Onyango)
CAUSE NO. 467 OF 2015
SERAH NTHULE MUTHIANI................................. CLAIMANT
VERSUS
CHANDARIA INDUSTRIES LIMITED.............. RESPONDENT
CONSOLIDATED WITH
CAUSE NO. 309 OF 2015
ALEX KISSAH LUCIA............................................... CLAIMANT
VERSUS
CHANDARIA INDUSTRIES LIMITED.............. RESPONDENT
CONSOLIDATED WITH
CAUSE NO. 316 OF 2015
RISKY MUHATI SHIOLE.......................................... CLAIMANT
VERSUS
CHANDARIA INDUSTRIES LIMITED RESPONDENTCONSOLIDATED WITH
CAUSE NO. 317 OF 2015
ELVIS BARAZA WAMBANI......................................CLAIMANT
VERSUS
CHANDARIA INDUSTRIES LIMITED.....RESPONDENT
CONSOLIDATED WITH
CAUSE NO. 466 OF 2015
LILIAN NKATHA MUGAMBI.........................CLAIMANT
VERSUS
CHANDARIA INDUSTRIES LIMITED......RESPONDENT
CONSOLIDATED WITH
CAUSE NO. 524 OF 2015
ONGERI MAKORI CLIVE............................... CLAIMANT
VERSUS
CHANDARIA INDUSTRIES LIMITED......RESPONDENT
CONSOLIDATED WITH
CAUSE NO. 526 OF 2015
BENARD SHITINDO KHAYO.......................... CLAIMANT
VERSUS
CHANDARIA INDUSTRIES LIMITED......RESPONDENT
CONSOLIDATED WITH
CAUSE NO. 688 OF 2015
NELSON OGOLA MURUBI..............................CLAIMANT
VERSUS
CHANDARIA INDUSTRIES LIMITED.......RESPONDENT
CONSOLIDATED WITH
CAUSE NO. 690 OF 2015
SIMON NANZAYI ACHIEYA.............................CLAIMANT
VERSUS
CHANDARIA INDUSTRIES LIMITED....... RESPONDENT
CONSOLIDATED WITH
CAUSE NO. 1347 OF 2015
LINUS OUMA OKONGO...................................CLAIMANT
VERSUS
CHANDARIA INDUSTRIES LIMITED......RESPONDENT
CONSOLIDATED WITH
CAUSE NO. 1537 OF 2015
NELSON OKELO ALOO..................................CLAIMANT
VERSUS
CHANDARIA INDUSTRIES LIMITED.....RESPONDENT
JUDGMENT
The judgment herein is in respect of Cause Numbers 309 of 2015, 316 of 2015, 317 of 2015, 466 of 2015, 524 of 2015, 526 of 2015, 688 of 2015, 690 of 2015, 1347 of 2015 and 1537 of 2015.
All the claimants in these suits are former employees of the respondent and their services were terminated together under the same circumstances.
Similar suits were filed by claimants in Cause No. 808 of 2015 consolidated with Cause No 312 of 2015 wherein judgment was delivered on 11th October 2019. The court awarded the two claimants therein the following –
“I therefore find that the claimants were not declared redundant but were terminated following their refusal to either relocate to another department or take leave while the respondent overhauled its machinery and equipment. I further find that the union was fully involved in the exercise.
On remedies, the claimants prayed for notice, severance pay, annual leave and house allowance. They confirmed receipt of Kshs.64,962. 30 each made up of service pay, leave and notice less PAYE. I however note that service was paid to both for 6 years’ service yet they had each worked for 8 years. I further note that they were each paid notice at Kshs.3,297/= each instead of 2 months’ salary as per CBA Clause 20 which provides that an employee who has worked for between 6 and 10 years is entitled to 2 months’ notice.
I would therefore calculate the payments due to the claimants as follows –
Immaculate Mbithe Mutunga – 1st Claimant
i. Notice for 2 months at Kshs.11,304 per month
for 2 months Kshs.22,608
(less paid) (Kshs.3,297)
Kshs.19,311
ii. Service (balance of 2 years) at 22 days
per year of service Kshs.19,130
Total Kshs.38,441
Jackson Muindi Kiilu – 2nd Claimant
i. Notice for 2 months at Kshs.17,304 per month
for 2 months Kshs.34,608
(less paid) (Kshs.3,297)
Kshs.31,311
ii. Service (balance of 2 years) at 22 daysper year of service Kshs.29,383
Total Kshs. 60,694
When the parties appeared in court on 12th November 2019, they agreed that the judgment in Cause No. 808 of 2015 be adopted in all the other related suits.
The CBA provides for notice at service at Clauses 20 as follows –
“(20) TERMINATION OF SERVICE
a. After the completion of satisfactory probationary period, service will be terminable by either party giving notice or pay in-lieu thereof as outlined hereunder.
Employees with 1 to 5 completed years of service – 1 month.
Employees with 6 to 10 completed years of service – 2 months.
Employees with over 10 completed years of service – 3 months.
b. Any employee whose termination may be called for on medical grounds (Certified by Registered Medical Practitioner) be permitted in accordance with provisions of Clause 19(a).”
Claimants were paid severance pay in accordance with the redundancy clause of the CBA. Clause 21(e) of the CBA on Entitlement of redundant employees states as follows –
“(e) Entitlement of Redundant Employees
In the event of any employee being declared redundant will be entitled to: -
The normal notice or pay in lieu of notice as defined in the Agreement.
Payment of wages, overtime and any other remuneration which may be due to him calculated up to the date on which he/she ceases to work.
Pro-rata leave and leave allowance entitlement in accordance with the agreement.
The redundant employee shall be entitled to twenty two (22) days for each completed year of service calculated on basic wages earned at the time of redundancy.”
In line with the judgment in Cause No. 808 of 2015 above, I award each of the claimants as follows –
CAUSE NO./NAME YEARS
OF
SERVICE LAST
SALARY NOTICE
PAID BALANCE
NOTICE BALANCE SERVICE TOTAL
Cause No. 309 of 2015
Alex Kissah Lucia 6 13,680 3,297 24,063 Paid in full 24,063. 00
Cause No. 316 of 2015
Risky Muhati Shiole 9 17,304 3,297 31,311 31,086. 00 62,397. 00
Cause No. 317 of 2015
Elvis Baraza Wambani 2. 4 11,304 3,297 8,007 Paid in full 8,007. 00
Cause No. 466 of 2015
Lillian Nkatha Mugambi 4. 7 11,304 3,297 8,007 Paid in full 8,007. 00
Cause No. 524 of 2015
Ongeri Makori Clive 8 17,304 3,297 31,311 20,724. 00 52,035. 00
Cause No. 526 of 2015
Benard Shitindo Khayo 8. 5 13,680 3,297 24,063 25,905. 00 49,968. 00
Cause No. 688 of 2015
Nelson Ogola Murubi 8 17,304 3,297 31,311 Paid in full 31,311. 00
Cause No. 690 of 2015
Simon Nyanzayi Achieya 6 13,680 3,297 24,063 Paid in full 24,063. 00
Cause N`o. 1347 of 2015
Linus Ouma Okongo 8. 1 17,304 3,297 31,311 21,760. 20 53,071. 20
Cause No. 1537 of 2015
Nelson Okelo Aloo 8 17,304 3,297 31,311 20,724. 00 52,035. 00
The respondent shall pay costs to the claimants.
Instruction fees shall be based on the consolidated judgment as the cases were heard together.
DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 31ST DAY OF JANUARY 2020
MAUREEN ONYANGO
JUDGE