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ELRCPartially AllowedNot stated in judgment (memorandum of claim filed 20.01.2012)· [2013] KEELRC 913 (KLR)

Kenya Union Of Domestic, Hotels, Educational Institutions, Hospitals And Allied Workers v Leshau Boys' High School [2013] KEELRC 913 (KLR)

Employment and Labour Relations Court
29 November 2013
960 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a school couldn't change staff retirement benefits without consulting the union, awarding two workers unpaid gratuity and leave pay.

What this practically means

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Executive summary

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The Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers claimed on behalf of two grievants, Mary Njeri Kabiru and Susan Njoki Ngigi, former non-teaching staff of Leshau Boys High School, for service gratuity and unpaid leave. The respondent, represented by the Attorney General, asserted the separations were amicable voluntary retirements with gratuity already paid, that the grievants proceeded on terminal leave with pay, and that no collective agreement bound the parties. The court framed two issues: whether the collective agreement bound the parties, and whether the remedies sought were payable. Relying on a 1986 collective agreement between the union and the Ministry of Education, Science and Technology, the court held that the agreement was subsisting when the Education (Board of Governors) (Non-Teaching Staff) Regulations, 1993 were made, and no Ministerial determination displacing it was produced. Section 10(5) of the Employment Act required consultation for any variation, and none was shown. The agreement therefore applied to the grievants' retirement at age 50, with gratuity at one twelfth of each completed year of service. The grievants were awarded the shortfall in gratuity (Kshs.88,582.00 and Kshs.52,812.00) and leave pay (Kshs.7,140.00 and Kshs.6,130.00), totalling Kshs.154,664.00, payable by 1.1.2014 with interest at court rates in default, plus costs of the suit.

Key legal issues

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01

Whether the collective agreement bound the respondent and the grievants

Holding

The collective agreement applied to the grievants' retirement; the 1993 Regulations did not displace it absent any Ministerial determination.

Reasoning

The collective agreement dated 18.03.1986 was subsisting when Legal Notice No. 283 of 1993 was published. The court was not shown any determination by the Minister on the effect of the Regulations on the subsisting agreement. Under Regulation 6, the Employment Act applies to claims and grievances between the Board and its staff, and section 10(5) requires consultation for variation of terms. There was no evidence of agreed variation, so the collective agreement governed retirement.

p. 2
02

Whether the grievants were entitled to service gratuity under clauses 30 and 31 of the collective agreement

Holding

The grievants retired at age 50 and were entitled to gratuity less amounts already paid: Kshs.88,582.00 for the 1st grievant and Kshs.52,812.00 for the 2nd.

Reasoning

Clauses 30 and 31 of the collective agreement prescribed retirement at 50 years and gratuity at one twelfth of each completed year of service. The grievants served 28 and 19 complete years respectively and retired on attaining age 50. The only deduction allowed was the gratuity already paid at separation.

p. 2
03

Whether the grievants were entitled to pay in lieu of annual leave

Holding

The June 2010 payment was treated as pay in lieu of retirement/termination notice; the grievants were awarded leave pay of Kshs.7,140.00 and Kshs.6,130.00 as prayed.

Reasoning

The grievants retired on 1.6.2010 and 31.5.2010 and were paid June 2010 salary. The court held that leave could not be taken after termination by retirement, and characterised the June payment as pay in lieu of notice, leaving the annual leave claim payable as prayed.

p. 2

Legal principles established

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  • Terms and conditions of service in a collective agreement cannot be varied unilaterally; variations require consultation/agreement as envisaged under section 10(5) of the Employment Act.

Court orders

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  1. 1.the respondent to pay the grievants Kshs.154,664.00 as found due in this judgment
  2. 2.the payment in 1 to be by 1.1.2014, in default interest to be payable at court rates from the date of the judgment till full payment
  3. 3.the respondent to pay costs of the suit

Authorities

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Legislation

  • Employment Actsection 10(5)
  • Education (Board of Governors) (Non-Teaching Staff) Regulations, 1993 (Legal Notice No. 283 of 1993)Regulations 6 and 9
Jurisdiction invoked
Not expressly stated; first-instance claim under the Employment Act

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 Union Of Domestic, Hotels, Educational Institutions, Hospitals And Allied Workers v Leshau Boys' High School [2013] KEELRC 913 (KLR)", Case Analysis (2013). Not stated in judgment (memorandum of claim filed 20.01.2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/913/eng@2013-11-29

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