TAILORS AND TEXTILES WORKERS’ UNION V NAKURU INDUSTRIES LIMITED [2013] KEELRC 375 (KLR)
The bottom line
#Kenya's Employment Court ruled that employees qualify for gratuity after just one year of service unless a collective agreement says otherwise.
What this practically means
#Executive summary
#Key legal issues
#Qualifying period for gratuity under clause 34 of the CBA
One year of service from initial appointment applies to both temporary and permanent union employees unless the parties agree more favourable terms
Section 35(5) of the Employment Act, 2007 entitles a terminated employee to service pay for every year worked on terms to be fixed. Since the parties fixed the rates by agreement but disputed the qualifying period, the court supplied the statutory benchmark of one year, while allowing the parties to vary it by agreement. The order takes effect from the judgment date to avoid ambushing employees already terminated during negotiations.
Res judicata / abuse of process in light of cause No. 1100 of 2010
The qualifying-period issue was not determined on its merits in cause No. 1100 of 2010, so raising it here was not an abuse of process
The earlier award had left the issue to be resolved by a conciliator, and conciliation had failed to produce an amicable resolution. The court therefore found it proper for the claimant to litigate the qualifying period in this cause.
Alleged unfair termination and forced resignations of 74 employees
Claim for twelve months' compensation and arrears not established for want of evidence
The claimant did not prove that the 74 listed employees were terminated or that the terminations were unfair; the respondent's own witnesses were still in employment and denied union membership or liability. The evidential burden rested on the claimant and was not discharged.
Legal principles established
#- Where parties have not agreed a qualifying period for gratuity, the statutory benchmark in section 35(5) of the Employment Act, 2007 fixes the basic qualifying period at one year of service
- Parties may enhance or reduce the qualifying period by collective agreement
Court orders
#- 1.Until and unless the parties agree to more favourable terms, the qualifying period for gratuity for both temporary and permanent union employees of the respondent shall be service of one year from the initial date of appointment, effective from the date of judgment
- 2.The Deputy Registrar shall cause the order in (a) registered as part of the collective agreement between the parties
- 3.Each party to pay own costs of this cause
- Jurisdiction invoked
- First-instance jurisdiction over a trade dispute concerning a collective bargaining agreement (dispute referred under the Labour Relations Act framework, read with the Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "TAILORS AND TEXTILES WORKERS’ UNION V NAKURU INDUSTRIES LIMITED [2013] KEELRC 375 (KLR)", Case Analysis (2013). Not stated in judgment (memorandum of claim filed 17.10.2010; related cause No. 1100 of 2010 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/375/eng@2013-05-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.