Kenya Shipping, Clearing & Warehouses Workers Union v M/S Grain Bulk Handlers Limited [2017] KEELRC 1716 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT MOMBASA

CAUSE NUMBER 365 OF 2015

BETWEEN

KENYA SHIPPING, CLEARING & WAREHOUSES  WORKERS UNION.............CLAIMANT

VERSUS

M/S GRAIN BULK HANDLERS LIMITED........................................................RESPONDENT

JUDGEMENT

1. The Claim is brought by the Claimant on behalf of 6 of the Members (Grievants) who were Employees of the Respondent.  The Employees resigned from the Respondent voluntarily, on diverse dates in the year 2013.

2. They did not notify their Employer about resignation.

3.  They seek orders for payment of terminal benefits including gratuity.  They state under paragraph 2 of their prayers, that the Respondent should recover 1 month salary in lieu of notice from their terminal benefits.

4. The Respondent filed its Statement of Response on 14th July 2015.  It is agreed the Grievants were employed by the Respondent, and resigned on diverse dates, in 2013.  The Claimant reported the existence of a trade dispute to the Minister for Labour on 26th November 2013.  Parties were able to agree on computation of terminal dues before the Conciliator.  They agreed the Claimant would furnish the Conciliator with supportive documents, on the outstanding claim of gratuity.  The Respondent counterclaims notice pay, and annual leave pay from the Grievants.

5.  The Claimant did not present such documents.  It instead filed this Claim.

6.  Parties agreed to have the dispute considered and determined on the strength of the record.

The Court Finds:-

7. There is no Collective Agreement between the Parties, making provision for payment of gratuity.

8.  There is no clause, in any of the Grievants’ contracts of employment, granting gratuity.

9.  In the absence of a Collective or Individual Agreement providing for gratuity, it is not helpful for the Claimant to assert Grievants should be paid gratuity simply because other Employees had received service gratuity.

10.  The Pay Statements of Employees who received service gratuity indicate those Employees left employment on redundancy, rather than resignation.  What is described as service gratuity is severance pay, paid on redundancy under Section 40 of the Employment Act.

11.  The Grievants resigned, and do not merit severance pay, paid to other Employees who left on redundancy.

12.  If the Claimant’s argument is that the Grievants should have received service pay under Section 35 of the Employment Act, this argument is turned on its head by Respondent’s counter-argument that the Grievants were subscribed to the N.S.S.F, therefore ineligible for service pay, under Section 35(6) of the Employment Act.

13.  The Claimants reported the existence of a trade dispute to the Minister for Labour under the Labour Relations Act 2007.

14.  It was agreed, as per Memorandum of Agreement dated 18th July 2014, that the computation of terminal dues made by the Respondent, was correct.  The Grievants were to be paid those dues as computed.  The Court presumes these dues were paid.

15.  The Conciliator directed the Trade Union to furnish the Conciliator with documents, supporting its Claim for gratuity.

16.  There is no evidence before this Court showing such documents were supplied.  The Claimant did not revert to the Conciliator.

17.  The Claimant instead filed the Claim herein, asking the Court to grant the prayer for gratuity.

18.  Consequently, it cannot be said that the conciliation process failed to resolve the dispute in full.  There is no certificate issued by the Conciliator under Section 69 of the Labour Relations Act 2007, stating the gratuity aspect of the trade dispute, remained unresolved.

19.  Although the Claimant cites Rule 6 of the retired Industrial Court (Procedure) Rules 2010, as one of the Rules under which the Claim is presented, the Claimant has not complied with the requirements of Rule 6.  The Claim is improperly filed in Court.

20.  Lastly, the Court wishes to comment on the Counter-claim.  The Claimant concedes Grievants resigned, without issuing notice to their Employer.  The Claim for recovery of annual leave pay made by the Respondent was not supported through the Pleadings, Documents and Submissions on record.  The Claim by the Respondent for payment of 1 month notice pay is allowed.  The claim for recovery of annual leave pay is declined.

IT IS ORDERED:-

a.The Claim is rejected.

c.The Counter-Claim is partly allowed.

c.The Grievants shall pay to the Respondent 1 month salary each, in lieu of notice.

d.No order on the costs.

Dated and delivered at Mombasa this 28th day of February 2017.

James Rika

Judge