[2014] KEHC 2854 (KLR)
The court found that the claimant failed to provide any contractual clause, statutory provision, or judicial precedent to support the proposed formula for gratuity calculation. The court agreed with the respondent that, for permanent staff, the basic pay should be calculated by dividing the monthly salary by 30...
Source-derived case information.
- Citation
- [2014] KEHC 2854 (KLR)
- Parties
- Applicant: Tailors & Textiles Workers Union; Respondent: Kamyn Industries Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 165 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim dismissed
- Judges
- AN Makau
- Legal Topics
- Gratuity Calculation, Collective Bargaining Agreement, Retirement Benefits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tailors & Textiles Workers Union
Applicant
Kamyn Industries Ltd
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 What is the correct formula for calculating gratuity for the grievants upon retirement.
- 2 Whether the claimant has established a legal or contractual basis for the formula proposed.
Ratio Decidendi
The court found that the claimant failed to provide any contractual clause, statutory provision, or judicial precedent to support the proposed formula for gratuity calculation. The court agreed with the respondent that, for permanent staff, the basic pay should be calculated by dividing the monthly salary by 30 days, not 26, as the claimant suggested. The court held that the calculation method advanced by the respondent is the correct approach in the absence of any contrary provision in the Collective Bargaining Agreement or law. As such, the claimant's case was dismissed, but the grievants are entitled to their dues as calculated using the respondent's formula.
Court Disposition
claim dismissed
Orders
- The case is dismissed with no order as to costs.
- The grievants will be paid their dues as calculated using the respondent's formula.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA
AT MOMBASA
CAUSE NO. 165 OF 2014
TAILORS & TEXTILES WORKERS UNION …...............................CLAIMANT
VERSUS
KAMYN INDUSTRIES LTD …..................................................RESPONDENT
J U D G M E N T
INTRODUCTION
This is a claim about payment of gratuities upon retirements of Mwanaisha Salim, Kalama Gwilili and Mgeni Salim (grievants) who were formerly employed by the respondent. The case came up for hearing on 23/6/2013 when the parties agreed to dispose of the matter by written submissions.
The gist of the claimant's submissions is that after retirement the respondent used a wrong formula for calculating gratuities for the grievants. According to her, the formula should be 22 days pay x basic salary ÷ 26 days per month x years served.
On the other hand the respondent has denied that formula and insisted that the correct formula is 22 x basic salary ÷ 30 days x years served.
ANALYSIS AND DETERMINATION
After perusing and considering the pleadings and the submissions filed, the court has not seen any dispute regarding each of the grievants monthly basic pay. There is also no dispute that each of the grievants is entitled to service gratuity or retirement at the rate of 22 days pay per year of service. The only issue for determination is what is the formula for calculating the basic pay per day for the grievants. The claimants has contended that the monthly basic pay should be divided by the 26 days one works per month. The respondent has on the other hand contended that the monthly basic pay is the average pay per month whether one works for less days or more days in some months depending on the length of each respective month.
The court agrees with the defence that basic pay for permanent staff cannot be calculated in the same manner as that of casual workers. The basic pay in this case shall be calculated on the basis of the grievants monthly basic salary divided by 30 days. The resulting basic daily pay shall be multiplied by 22 days per year of service to get the total service gratuity per grievant.
The claimant has based this claim on the Collective Bargaining Agreement dated 30/7/2012 but has not cited any clause that supports the formula she now wants the court to adopt. She has also not cited any judicial precedent or statutory law to support her case. Consequently the claimants case fails.
DISPOSITION
The case is dismissed with no order as to costs. However the grievants will be paid their dues as stated above.
Dated, Signed and delivered this 26th September 2014
O. N. Makau
Judge