[2002] KEELRC 20 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT OF KENYA

AT NAIROBI.

(Before: Charles P. Chemmuttut, J.,

J.M. Kilonzo & A.K. Kerich, Members.)

CAUSE NO.64 OF 2001.

TAILORS & TEXTILES WORKERS’ UNION.................................................Claimants.

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GOPITEX KNITWEAR MILLS LTD...........................................................Respondents.

Issue in Dispute:

“Wrongful termination of (1) Nelson Mbuti (2) Leonard Magero (3) Isaack Odinga (hereinafter called the grievants).

John O. Nyandiga, General Secretary, for the Claimants (hereinafter called the Union).

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

A W A R D.

This dispute was referred to the Court for consideration and determination by the Minister for Labour on 25th June, 2001 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 Labour Commissioner and the Minister himself under Section 14, subsection (9)(e) and (f) of the Act, were received by the Court on 27th June, 2001, and the dispute was listed for mention on 6th July, 2001. On this occasion, Mr. Alex Okoth appeared for the Union, but there was no appearance for the Company. Notwithstanding the absence of the latter, however, the parties were directed to submit or file their respective written memoranda or statements on or before 15th August and 14th September, 2001, and the dispute was fixed for hearing on 11th October, 2001. The parties were also properly notified of this arrangement. On 11th October, 2001 Mr. K. Kuria, Advocate, instructed by Mr. Ramesh Manek, Advocate-on-Record, appeared for the Company, but there was no appearance for the Union. In the circumstances, the dispute was stood over generally. On 22nd February, 2002, the Union moved the Court for mention of the dispute to fix a convenient or suitable date for hearing, and also submitted their memorandum hereof. Consequently, the case was brought up for mention on 4th April, 2002, when Mr. Alex Okoth appeared for the Union and Mr. K. Kuria, Advocate, who again appeared for the Company, was allowed to file his reply statement on or before 3rd May, 2002, and the dispute was fixed for hearing on 19th June, 2002. But the learned counselneither filed his reply statement as directed nor gave any reasons for his inability to do so. However, on 19th June, 2002 the Learned counsel for the Company attempted to file the same, but Mr. Nyandiga objected to the late filing of the reply statement. The objection was upheld on the ground that the purported reply statement was inordinately belated, prejudicial to the grievants and meant to delay the hearing of the dispute. The learned counsel walked away and the dispute was, therefore, heard ex-parte.

Mr. Nyandiga submitted that the parties have a recognition agreement, and are bound by the collective agreement between the Union and the Knitwear Manufacturers Group of F.K.E., of which the Company is a member. The three grievants were employed on 10th August, 1981, 1st September, 1981 and 1st November, 1984 respectively. It was stated that the first grievant was engaged as a machine operator or attendant while the second and third grievants were employed as permanent machinists. The first and second grievants were terminated on 17th April 1998, on disciplinary grounds for refusing to accept warning letters and demanding their overtime allowances while the third grievant was terminated on 16th September, 1998 also on disciplinary grounds for reporting a defective machine. At the time of their

termination as aforestated, the grievants were earning Kshs.3,877/=, Kshs.3,820/= and Kshs.3,785/= per month respectively, and a monthly house allowance of Kshs.1,400 each.

Mr. Nyandiga submitted further that the grievants have served the Company with clean or unblemished employment records, but were terminated by the Company as aforesaid without paying their redundancy benefits. He said that the parties attempted to settle the matter at their own level but failed. On 20th November, 1998, the Union reported a formal trade dispute to the Minister for Labour, who accepted the same and appointed Mrs. E. Mukanga of Industrial Area Labour Office to act as the Investigator; and in his investigation report, which he released to the parties on 5th October, 2000, the Minister found in each case that the termination of the grievants was unlawful. He, therefore, recommended that the unlawful termination of the grievants be reduced to normal termination, and they be paid their terminal benefits in accordance with the terms and conditions of the collective agreement between the Union and the Knitwear Manufacturers Group of F.K.E. in force at the material time. In addition, they should also be paid compensation, equivalent to 6 months’, 6months’ and 4 months’ wages

respectively for loss of employment.

The Minister finally appealed to the parties to accept the recommendation as a basis of settlement of this dispute; but it would appear that the Union rejected the compensation as inadequate. Hence this dispute for consideration and determination.

In view of the foregoing, Mr. Nyandiga claimed the following dues:-

1. First grievant:

(a) Salary for 17 days worked. Kshs.2,029. 70

(b) 38. 5 hours normal overtime worked. “ 1,554. 80

(c) 1997/98 leave traveling allowance. “ 1,200. 00

(d)4 months consolidated salary

in lieu of notice.“ 21,108. 00

(e)Arrears of wages. “ 4,910. 60

(f)Leave balance. “ 3,500. 00

(g)Service pay for 17 years. “ 53,234. 00

(h)12 months compensation for loss

of employment.“ 63,324. 00

Total Kshs.150,861. 30

2. Second grievant:

(a) Salary for 17 days worked. Kshs.2,007. 70

(b) 38. 5 hours overtime worked. “ 1,538. 20

(c)4 months consolidated salary

in lieu of notice.“ 20,880. 00

(d) 1997/98 Leave traveling allowance. “ 1,200. 00

(e) Arrears of wages. “ 4,836. 10

(f) Service pay for 17 years. “ 52,451. 50

(g)12 months compensation for loss

of employment. “ 62,220. 00

Total Kshs.135,760. 85

3. Third grievant:

(a) Salary for 16 days worked.Kshs.2,018. 70

(b)4 months consolidated salary

in lieu of notice.“ 20,740. 00

(c) Arrears of wages “ 4,791. 80

(d) Service pay for 14 years. “ 42,799. 60

(e)12 months compensation

for loss of employment. Kshs.62,220. 00

Total Kshs.135,760. 85

Since the claim by the Union on behalf of the grievants stands unchallenged, their demand is granted and the grievants are awarded the terminal dues hereinabove, and the same must be paid within thirty (30) days from to-day.

I so order.

On consultation, the Members of the Court support this decision.

DATED and delivered at Nairobi this 23rd day of October, 2002.

Charles P. Chemmuttut,

JUDGE.