Kenya Union of Domestic, Hotels, Educational Institutions & Hospital Workers Union v Agoro Sare High School [2014] KEELRC 1113 (KLR)

IN THE INDUSTRIAL COURT OF KENYA AT KISUMU

(Before Hon. Justice Hellen Wasilwa on 17th June, 2014)

-VERSUS-

R U L I N G

They sought orders to restrain the respondent from executing the intended termination on account of redundancy of the employees working at the respondent's security department and to maintain the status quo until this matter is heard and determined.

The application is supported on the grounds that:-

The respondent purported that the decision to  terminate the said employees on account of   redundancy was a resolution by the board of   governors during their meeting of 1st November      2013.

The said employees have been diligently and    competently working for many years as security   for the respondent and have been awarded   certificates of excellence for their exemplary    work.

To date the respondent is yet to communicate on    cancellation of termination of the grievant as   their effective date is fast approaching and it is  the contention of the claimant that the    respondent is only keen on unlawfully terminating the services of the grievant to defeat   the claimant as  the grievants are only targeted   due to their involvement with matters      of    the   union.

This pending disputes are the unfair termination      of;

2.    Kennedy Opecho – a cook was terminated   in October 2011.

4.    Jackson Oganga – a security guard was   terminated in October 2011.

6.    Tom Oloo -  a security guard was terminated in December 2012.

8.    Edwin Omondi Oloo – a librarian   terminated in December 2012.

And now the entire security to be terminated by 1st April 2014.  On all the termination the  respondent is unable to substantiate the reason  for termination.

As the respondent is by far and large not sincere     on the reasons for the supposed intended   termination on account of redundancy which is  merely a plot to deny employees their Constitutional right of being part of the claimant  and further being represented in matters of   employment.

It is therefore the contention of the claimant   that these actions of the respondent is a serious   contravention of Article 41 of the Constitution of Kenya 2010, Clause 5, 40, 43, 45 and S. 46 of   Employment Act 2007 and therefore unfair and a labour malpractice of the highest degree.

It is the applicants submission that the respondent in attempting to declare their members redundant, never complied with the requirements of S. 40 of Employment Act 2007.  That the respondent further started to terminate services of claimant members and to-date 9 members have been terminated and only 1 paid terminal benefits.  In applicants view, the respondent's action is meant to defeat provisions of Article 41 of Constitution on a right to join a Union and therefore close out the claimants from recognition by reducing their numbers.

Having considered submissions of both parties, the issue for consideration is whether in the attempt to declare the claimant union's members, redundant, the respondent adhered to the law.

“(1) An employer shall not terminate a contract of service on account of redundancy unless the  employer complies with the following conditions—

(b)   Where an employee is not a member of a trade union, the employer notifies the employee  personally in writing and the labour officer;

(d)   Where there is in existence a collective   agreement between an employer and a trade   union setting out terminal benefits payable

(e)   The employer has where leave is due to an  employee who is declared redundant, paid off           the leave in cash;

(g)   The employer has paid to an employee declared  redundant severance pay at the rate of not less  than fifteen days pay for each completed year of service.

From my analysis, I find that the application by the applicant has merit and I therefore order that:-

(b)   The respondents are also restrained from victimizing intimidating, harassing or otherwise   declaring the claimant members redundant   until this case is heard and determined.

HELLEN WASILWA

17/6/2014

Tonge Yoya  for claimants  present

CC.  Wamache