REPUBLIC OF KENYA.
IN THE INDUSTRIAL COURT OF KENYA
AT NAIROBI.
(Before: Charles P. Chemmuttut, J.,
J.M. Kilonzo & O.A. Wafula, Members.)
CAUSE NO. 57 OF 2006.
KENYA BUILDING, CONSTRUCTION, TIMBER,
FURNITURE & ALLIED INDUSTRIES
EMPLOYEES’ UNION…………………………………………………..Claimants.
v.
NIAZSONS (K) LTD. ………………………………………………… Respondents.
Issue in Dispute:-
“Wrongful dismissal of 20 employees” (hereinafter called the grievants), namely:-
1. Kariuki Mwita (Mwite).
2. Duncan Thiong’o.
3. Peter Njagi.
4. Kepher Mbai.
5. George Kironyo.
6. Peter Aila.
7. Mweu Ngovi.
8. Nzanzi Malii.
9. David Mugendi.
10. Martime Kola.
11. Andrew Machuka.
12. Peter Musyimi.
13. Timothy Kaloki.
14. Jackson Njema.
15. John Maingi.
16. Verginia Waeni Munyao.
17. Agness Kanini.
18. Anjeline Kasele Mwanza.
19. Rose Mutei Mwangangi.
20. Benjamin Kingoo Nzioka.
Mr. E.M. Gikunju for the Claimants. (hereinafter called the Union).
No appearance for the Respopndents (hereinafter called the Company).
The Minister for Labour referred this dispute to the Court for consideration and determination on 28th June 2006, in accordance with Section 8 of the Trade Disputes Act, Cap. 234, Laws of Kenya (which is hereinafter referred to as the Act); and his reference, together with the statutory certificates from the Labour Commissioner and the Minister himself under Section 14(9)(e) and (f) of the Act, were received by the Court on 29th June, 2006. The dispute was then listed for mention on 20th July, 2006, and the parties were notified to attend. On this occasion, Mr. David Mucheru for the Union appeared, but there was no appearance for the Company. In spite of the non-appearance of the latter, the parties were, however, directed to submit or file their memoranda or statements on or before 17th August and 6th September, 2006 respectively, and the dispute was fixed for hearing on 14th September, 2006. The parties, through my letter of even date, i.e. 20th July, 2006, were also notified to comply and attend. Mr. Gikunju for the Union submitted his memorandum on 17th August, 2006, a copy of which was served upon the Company on the same day by Mr. D.G. Mucheru, and in their letter, Ref: Misc/8/2006, dated 21st August, 2006, which was signed by the learned counsel, Mr. Gilbert Josiah Mungu, M/S. Mungu & Co., Advocates, informed the Court as follows:-
“Your letter of 20th July addressed to The Managing Director of Niazsons (K) Limited refers.
We are instructed to inform you that Niazsons (K) Ltd., has been placed under receivership. The Receiver is generally represented by Walker & Kontos, Advocates. Kindly address your correspondence to them at Hakika House, Bishops Road, P.O. Box 60680-00200, Nairobi.”
This letter was copied to the General Secretary of the Union and a Mr. Mohamed Z. Niaz, but during the hearing of this dispute on 14th September, 2006, Mr. Gikunju for the Union denied having received a copy thereof. The Court did not also take note of the said letter because it does not entertain or act on or deal with cases through correspondence. The Court wondered who instructed the said firm of advocates to communicate with it (Court) in view of the fact that there was no documentary evidence or otherwise for our scrutiny. In any case, the said letter did not absolve the Company from filing its reply statement to the Union’s memorandum, and no reasons were given for the Company’s inability to appear during the hearing of this dispute. The matter was, therefore, heard ex-parte.
Mr. Gikunju submitted that the Union is a registered trade union under Section 11 of the Trade Union Act, Cap. 233, Laws of Kenya; and, although the parties did not have either a valid recognition agreement or a collective bargaining agreement, the Union was the rightful one to represent the interests of the unionisable employees in the Company’s concern. He, therefore, relied on L.N. No. 153 of 1998- The Regulation of Wages (Building and Construction Industry) Order 1998, under the Regulation of Wages and Conditions of Employment Act, Cap. 229, Laws of Kenya, for the demand under consideration (see App. I).
In our view the Union, having been registered as such and no rival trade union is claiming recognition or representation, is the sole and proper one to represent the interests of the unionisable employees of the said Company.
The Company was incorporated as a limited liability concern, and is engaged in building, construction and structural civil engineering works.
Mr. Gikunju submitted further that the grievants were employed by the Company on diverse dates between March 1998 and July 1999; and after about one year, they were verbally dismissed also on different dates between June 1999 and March, 2000 on completion of the work on which they were engaged without payment of their terminal dues or benefits. He pointed out that the parties attempted to resolve the matter at their own level without success because of the difficult and unco-operative attitude of the Company.
Consequently, the Union reported a formal trade dispute to the Minister for Labour, who accepted the dispute and appointed Mr. S.M. Mbae of Ministry of Labour Headquarters to act as the Investigator; and in his investigation report, which was released to the parties on 14th April, 2003, the Minister found “(i) that the grievants were engaged by the Company at their construction site along Mombasa road on diverse dates between 7th March 1998 and 7th March 1999 and declared redundant on diverse dates between 28th June 1999 and 1st March 2000; (ii) that all the affected (20) twenty grievnats were declared redundant and that the various legal provisions as provided for in the relevant sectoral order were disregarded by the Company; (iii) that the employer failed to pay the grievants the terminal/redundancy dues as legally provided for, and (iv) finally that all the grievants’ particulars, i.e. dates of commencement of work, occupation and rates of pay are as correct as provided by the union.” The Minister, therefore, recommended that the grievants be paid their full terminal/redundancy dues and also be issued with certificates of service.
Finally, the Minister appealed to the parties to accept the recommendation as a basis of resolving this dispute.
For the foregoing reasons, Mr. Gikunju prayed that the grievants be paid the following terminal benefits in accordance with L.N. No. 153 of 1998, and maximum compensation, i.e. 12 months, for loss of employment:-
“ 1.KARIUKI MUITE – (MASON)
Date of Employment - 2.10.1998
Date of Dismissal - 9.10.1999
Rate of Pay of day - Shs. 220/-
1 month notice (189.05+34.50) 224x26 = 5,824.00
1 month leave (189.05+34.50) 224x26 = 5,824.00
Underpayments (224-220)x26x12 months = 1,248.00
Tools allowance 108x12 months = 1,296.00
14,192.00
2. DUNCAN THIONGO – (DRIVER)
Date of Employment - 28.10.98
Date of Dismissal - 16.10.99
Rate of pay – Shs. 225/- per day
1 month notice – 273x26 = 7,098.00
1 month leave – 273x26 = 7,098.00
Underpayment – 238+34/50=(273-225)x 1month = 528.00
= 14,724.00
3.PETER NJAGI – (MECHANIC)
Employed - 25.10.98
Dismissed - 16.10.99
Rates of Pay – Shs. 250/-
Notice ( 1month) 282x26 = 7,331.00
Leave (1 month) 282x26 = 7,331.00
Underpayment (282-250) x 11 months = 352.00
Tools allowance 180x 11 months = 1,980.00
16,994.00
4.KEPHAR MBAI – (STOREKEEPER)
Employed - 3.9.98
Dismissed - 9.10.99
Rates of Pay - Shs. 130/-
1 month leave – 255x26 = 6,630.00
1 month notice – 255x26 = 6,630.00
Underpayment – 26 days (255-130) x 12 months = 39,000.00
52,260.00
5. GEORGE KIRONYO – (JACKHAMMER)
Date employed - 28.10.98
Dismissed - 31.7.99
Rate of pay – Shs.150/-
Notice (156.35+34.50)x26 = 4,499.00
Leave (191x2.25 days x 9 months) = 3,868.00
Underpayment Shs. 41x26x9 months = 9,594.00
17,961.00
6. PETER AILA - (JACKHAMMER)
Employed - 28.10.98
Dismissed - 25.10.99
Rate of pay Shs.150/-
1 month notice – (191x26) = 4,499.00
1 month leave - (191x26) = 4,499.00
Underpayment – (191-150)x26x12 = 12,792.00
21,790.00
Employed - 11.10.98
Dismissed - 25.10.99
Rate of pay – Shs.150/-
1 month leave – 191x26 = 4,499.00
1 month notice – 191 x 26 = 4,499.00
Underpayment – 26x(191-150)x12 months = 12,792.00
= 21,790.00
8. NYANZA MALII – DRIVER MATE
Employed - 6.1.99
Dismissed - 19.7.99
Rate of pay – Shs.100/-
1 month notice – (169.60+34.50)x26 = 5,307.00
6 months leave – 2.25x6x104 = 2,754.00
Underpayment – (204-100)x6x26 = 16,224.00
24,285.00
9. DAVID MUGENDI – (DRIVER MATE)
Employed - 5.1.99
Dismissed - 25.10.99
1 month notice – 204 x26 = 5,307.00
8 months leave – 2.25x8months x204 = 3,672.00
Underpayment (204-100)x8x26 days = 21,632.00
30,611.00
10.ANDREW MACHUKA- (G/LABOURER)
Employed - 22.9.98
Dismissed - 9.10.99
Rate per day – Shs.100/-
I month notice 140.50+34.50)x26 = 4,524.00
11 months leave – (140.5+34.50)225x11 = 4,307.00
Underpayment – (174.00-100)x11x26 = 21,164.00
29,995.00
11. MARTIME KOLA – LABOURER
Employed - 5.10.98
Dismissed - 9.10.99
Rate per day – Shs.100/-
1 month notice 174x26 = 4,524.00
11 months leave – (174x2.25x11 = 4,307.00
Underpayment (174-100x11x26days) = 21,164.00
29,995.00
12. PETER MUSYIMI – LABOURER
Employed - 13.10.98
Dismissed - 9.10.99
Rate per day - Shs.100/-
I month notice – (174x26days) = 4.524.00
11 months leave – (174x2.25x11) = 4,307.00
Underpayment – (174-100x11x26 days) = 21,164.00
29,995.00
13. TIMOTHY KALOKI - LABOURER
Employed - 1.7.98
Dismissed - 27.9.99
Rate of pay - Shs. 100/-
1 month notice – 174x26 = 4,524.00
13 months leave (13x2.25x174) = 5,090.00
Underpayment (174-100)x13 = 25,012.00
34,626.00
14. JACKSON NJEMA - LABOURER
Employed - 5.9.98
Dismissed - 28.6.99
Rate of pay –Shs. 100/-
1 month notice 174x26 = 4,524.00
10 months leave (10x2.25x174) = 3,915.00
Underpayment – (174-100)x26x10 = 19,240.00
27,679.00
15.JOHN MAINGI – LABOURER
Employed - 3.8.98
Dismissed - 28.7.99
Rate per day - Shs. 100/-
1 month notice 174x26 = 4,524.00
11 months leave (11x174x2.25) = 4,307.00
Underpayment – (174-100)x26x11 = 21,164.00
29,995.00
16. VIRVINIA W. MUNYAO - LABOURER
Employed - 7.3.98
Dismissed - 28.7.99
Rate per day – Shs.100/-
1 month notice (174x26) = 4,524.00
1 year leave (1 month) 174x26 = 4,524.00
6 months leave 2.25x6x174 = 2.349.00
Underpayment – (174-100)x16 monthsx36 = 30,784.00
42,181.00
17.AGNED KANINI – LABOURER
Employed - 12.2.99
Dismissed - 20.10.99
Rate per day – Shs. 100/-
1 month notice 174x26 = 4,524.00
7 months leave (7x2.25x174) = 2,741.00
Underpayments – (174-100)x7x26 = 13,468.00
20,733.00
18. ANGELIN KASELE M. – LABOURER
Employed - 23.1.99
Dismissed - 23.6.99
Rate of pay – Shs. 100/-
Claims:-
1 month notice – 174x26 = 4,524.00
4 months leave – (2.25x4x174) = 1.566.00
Underpayment (174-100)x4x26 = 7,696.00
13,786.00
19. ROSE MUTEI M. – LABOURER
Employed - 23.1.99
Dismissed - 23.6.99
Rate per day – Shs. 100/-
Claims:-
1 month notice – 174x26 = 4,524.00
4 months leave - 4x225x174 = 1,566.00
4 months underpayment (4x174-100x26) = 7,696.00
13,786.00
20. BENJAMIN KINGOO N. – LABOURER
Employed - 26.2.99
Dismissed - 1.3.2000
Rate per day – Shs. 100/-
Claims:-
1 month notice 174x26 = 4,524.00
1 month leave 174x26 = 4,524.00
Underpayment (174-100)x26x12 = 23,088.00
32,136.00
The grievants are not, however, entitled to any compensation because it would appear that their engagements, though permanent, were for a specific period and specific jobs.
Since the demand by the Union, on behalf of the grievants, stands unchallenged, the amounts hereinabove are granted; and since, in cases of insolvency, salaries or wages or terminal benefits of employees owed are given preferential treatment or status in the distribution of the assets of the enterprise, the Receiver in this case is ORDERED to pay the same to the grievant within sixty (60) days from the date of this award.
A copy of this award be forwarded to the counsel for the Receiver hereinabove for implementation or enforcement.
DATED and delivered at Nairobi this 27th day of September, 2006.
Charles P. Chemmuttut, MBS.,
JUDGE.
J.M. Kilonzo, O.A. Wafula,
MEMBER. MEMBER.
