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ELRCPartially AllowedCause 191N of 2009· [2013] KEELRC 446 (KLR)

KENYA SCIENTIFIC, RESEARCH INTERNATIONAL, TECHNICAL & ALLIED INSTITUTIONS WORKERS’ UNION v KENYA SUGAR RESEARCH FOUNDATION [2013] KEELRC 446 (KLR)

Industrial Court of Kenya
10 April 2013
1,373 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan employer had to pay 38 retrenched workers their full terminal benefits because it could not produce any proof that the money had actually been paid.

What this practically means

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Executive summary

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The Claimant Union filed a Memorandum of Claim on 5th May 2009 on behalf of 38 grievants allegedly retrenched by the Respondent in 2003 for joining the Union, claiming notice pay, accrued leave, severance pay and overtime for weekdays, Saturdays, Sundays and Public Holidays. The dispute was reported to the Minister of Labour in May 2003 and a Memorandum of Agreement was signed before the Provincial Labour Officer, Nyanza on 5th August 2003, providing for terminal payment of about 35 former employees. The Chief Shopsteward later requested proper computation of the payments, and on 30th June 2006 the Provincial Labour Officer demanded payment of outstanding dues covering Sundays, public holidays and overtime worked over two years plus certificates of service. Further meetings in 2007 and 2008 failed, a certificate of unresolved dispute was issued, and the matter came to court. The Respondent conceded the 2003 agreement but contended the matter was concluded before the Labour Officer and that some grievants had died without substitution. The court held that the Respondent's allegation of conclusion was unsupported by documentary evidence, that the dispute was never resolved, and that the Respondent's bare denial did not suffice since it neither challenged the Claimant's detailed computation in Appendix 'XIV' nor produced evidence of payment. On a preponderance of evidence the Respondent was found liable to pay the grievants terminal benefits as computed, which computation was adopted as an order of the court with individual awards to each of the 38 grievants. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the terminal dues were settled under the 5th August 2003 Memorandum of Agreement

Holding

The court found the dispute was never resolved and no payments were made to the grievants beyond the agreed terminal payments.

Reasoning

The documentation trail — the 5th August 2003 agreement, the Chief Shopsteward's request for computation, the Provincial Labour Officer's letter of 30th June 2006 demanding outstanding dues, and subsequent failed invitations to meet in 2007 and 2008 culminating in a certificate of unresolved dispute — was consistent with the grievants' claim that terminal dues were not fully computed or settled. The Respondent relied only on an undated letter whereas the same office later issued a certificate of unresolved dispute.

p. 3
02

Whether the Respondent was liable to pay the terminal benefits as computed in Appendix 'XIV'

Holding

On a preponderance of evidence the Respondent was found liable to pay the grievants terminal benefits as computed in Appendix 'XIV', which the court adopted as its order.

Reasoning

The Respondent did not respond to or challenge the Claimant's detailed computation on behalf of the 38 grievants, and indeed conceded in submissions that computation of the specific claims was pending and should be done. Its bare denial therefore did not suffice, and the claim succeeded on the strength of the unchallenged computation.

p. 3
03

Whether the claims should be dismissed because some grievants allegedly died without substitution

Holding

The argument was rejected; the Respondent did not identify the alleged deceased grievants, and any substitution could be rectified before execution of the award.

Reasoning

The Respondent contended that some grievants were dead and were not substituted, and that the claims should therefore be dismissed. The court noted the Respondent did not identify the alleged deceased grievants, and held that even if some had died, that could be rectified at any time before execution of the award in favour of the Claimant suing on behalf of the named grievants.

p. 3

Legal principles established

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  • A bare denial, without evidence of payment, does not discharge the burden of proving that terminal dues were settled; the party asserting payment must produce documentary evidence of it.
  • A dispute evidenced by a certificate of unresolved dispute cannot be treated as concluded before the Labour Officer absent documentary support for such conclusion.

Court orders

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  1. 1.The Respondent is liable to pay the 38 grievants terminal benefits as computed in Appendix 'XIV' to the Statement of Claim, which computation is adopted as an order of the court, with individual awards set out per grievant
  2. 2.Each party to bear their own costs
Jurisdiction invoked
Reference of an unresolved trade dispute under the labour dispute resolution machinery (certificate of unresolved dispute issued 3rd December 2008)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "KENYA SCIENTIFIC, RESEARCH INTERNATIONAL, TECHNICAL & ALLIED INSTITUTIONS WORKERS’ UNION v KENYA SUGAR RESEARCH FOUNDATION [2013] KEELRC 446 (KLR)", Case Analysis (2013). Cause 191N of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/446/eng@2013-04-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.