Donald Julius Omala Okutoyi v Athi River Mining [2018] KEELRC 1386 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO. 212 OF 2012

DONALD JULIUS OMALA OKUTOYI.....................................CLAIMANT

- VERSUS -

ATHI RIVER MINING............................................................RESPONDENT

(Before Hon. Justice Byram Ongaya on Friday 27th July, 2018)

JUDGMENT

The claimant filed the memorandum of claim on 13. 02. 2012 through Muchoki Kang’ata & Company Advocates. The claimant prayed for:

a) Terminal dues arrears of Kshs. 835, 257. 00.

b) Interest on (a) at Court rates.

c) Costs of the suit plus interest thereon.

d) Any other relief that the Honourable Court may deem fit to grant.

The statement of defence was filed on 30. 05. 2012 through Manthi Masika & Company Advocates. The respondent prayed that the suit be dismissed with costs.

The claimant was employed by the respondent on 01. 08. 1992 and served until 31. 08. 2011 when he retired from employment on age grounds. He was paid Kshs. 96, 470. 00 as retirement dues and a further Kshs. 250,000. 00 being ex-gratia payment in appreciation of his 19 years of service.

The claimant alleges that he was a member of the Kenya Quarry & Mine Workers Union which had concluded a Collective Bargaining Agreement (CBA) with the respondent. It is the claimant’s further case that under clause 9 of the CBA the terminal dues applicable to all categories of staff were set out and he had served for 19 years and entitled to pay per clause 9 (iv) (c) of the CBA being pay of 30 days for every completed year of service. His basic pay was Kshs. 105, 500. 00 but the respondent opted to calculate the dues at 15 days for every completed year of service at Kshs. 79, 917. 00 instead of the full monthly pay as per the clause. On the formula of 30 days’ pay for each completed year of service, the claimant computed his dues at Kshs. 2, 004, 500. 00, less Kshs. 346, 470. 00, less Kshs. 822, 773. 00 being loans and other deductions, and net amount claimed Kshs. 835, 257. 00. The claimant prayed for the award accordingly.

The respondent admitted that the claimant’s pay was Kshs. 105, 500. 00 per month but denied that the CBA and clause 9 thereof applied to the claimant because, the claimant was not a member of the trade union and further, the claimant served in the management as a Personnel Manager. Therefore, he was precluded from joining the union.

The Court has considered the pleadings, the evidence and the submissions. It is clear that the claimant served as part of management in the capacity of Personnel Manager. The claimant had even signed some of the CBAs on behalf of the management such as the one signed on 14. 05. 2002.  Further, by the letter dated 02. 01. 2012, the Kenya Quarry & Mine Workers Union wrote to the respondent confirming that during his employment with the respondent and until retirement, the claimant had not been a member of the trade union. Under section 59 of the Labour Relations Act, 2007 a CBA binds the parties to the agreement and all unionisable employees employed by the employer being party to the CBA. Further, the terms of the CBA are incorporated into the contract of employment of every employee covered by the collective agreement. The claimant was not such employee and the Court returns that the CBA including clause 9 thereof did not apply to the claimant’s retirement dues.

Accordingly the Court returns that the claimant’s suit will fail.

In conclusion, the claimant’s suit is hereby dismissed with costs to the respondent.

Signed, dated and delivered in court at Nairobi this Friday 27th July, 2018.

BYRAM ONGAYA

JUDGE