Kenya Union of Domestic, Hotels, Educational Institutions & Hospital Workers v Young Women Christian Association (Cause 114 of 2014) [2014] KEELRC 1243 (KLR)
The bottom line
#The Industrial Court in Mombasa ordered YWCA to pay ten workers months of unpaid wages, CBA salary arrears, long service awards and uniform allowances, and to issue pay slips.
What this practically means
#Executive summary
#Key legal issues
#Statutory duty to pay wages
The Respondent breached a fundamental term by failing to pay wages when due; awards computed per the County Labour Officer's tabulations less advances
Section 18 of the Employment Act, 2007 obliges employers to pay wages as they fall due or as agreed. Both of the Respondent's witnesses admitted salaries were last paid in October/November 2013 and that only advances had since been given. The Court therefore found for the Grievants on the amounts calculated by the County Labour Officer, less any advances paid after the filing of the Claim.
Salary arrears based on CBA rates despite qualification objections
The Respondent, having assigned duties to Grievants it claimed were unqualified, could not resist payment at the CBA rates for those designations
The Respondent contended some Grievants lacked qualifications for the posts they held, computing arrears on payroll rather than CBA rates. The Court held the employer knew it was assigning duties to persons not qualified, the work was satisfactorily performed, and it would be inequitable to deny payment on that basis. The Labour Officer's computations factoring actual payments were adopted.
Long service awards and uniform allowance
Long service awards were not disputed and uniform allowance was due as uniforms were not provided as required by the CBA; Labour Officer's computations adopted
The Respondent's own witness admitted long service awards had been erroneously omitted from payment despite tabulation. Uniforms were not provided as clause 21 of the CBA required, and the Respondent's witness conceded the financial situation did not allow provision of uniforms. The Court adopted the County Labour Officer's computations for both heads.
Preliminary objection to the Memorandum of Claim
Objection dismissed; Order 4 rule 2 of the Civil Procedure Rules inapplicable as the Industrial Court (Procedure) Rules, 2010 govern the content of Claims, and the Union had annexed a schedule of amounts sought
The Respondent argued the Claim was defective for not stating exact sums and for lack of verifying affidavit authority. The Court held the Industrial Court (Procedure) Rules, 2010 prescribed the nature and content of Claims, so Order 4 rule 2 of the Civil Procedure Rules did not apply, and the Union had annexed a schedule of amounts with further computations filed after leave.
Pay slips
Respondent ordered to issue pay slips from October 2013
An employer is under a statutory duty (sections 20 and 21 of the Employment Act) to issue pay slips. The Respondent argued the Grievants refused to collect them until all wages were paid, but the Court distinguished between pay slips and actual payment, directing that pay slips be issued and collected from October 2013.
Legal principles established
#- Payment of wages when due is an essential term of the employment contract and failure to pay when due is a breach of a fundamental or essential term
- An employer is under a statutory obligation to issue an employee with a pay slip
- An employer who assigns duties to an employee without the requisite qualifications cannot later resist paying wages for that designation - it cannot blow hot and cold
- Accepting pay slips by itself is not an indication that wages have been paid
Court orders
#- 1.Respondent ordered to pay each of the ten Grievants the tabulated sums covering salary arrears, unpaid salaries up to July 2014, long service awards and uniform allowance (totals ranging from Kshs 190,717/- for Kahindi Karisa K to Kshs 802,814/- for Japheth Hanga)
- 2.Salary advances paid to the Grievants and acknowledged after commencement of the Claim and not factored in the awards to be deducted
- 3.Respondent to issue pay slips to the Grievants as required by law from October 2013
- 4.Parties at liberty to apply in case of any arithmetical errors in the figures
- 5.Each party to bear its own costs
- Jurisdiction invoked
- Industrial Court Act - trade dispute reported to Cabinet Secretary for Labour and referred after failed conciliation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Domestic, Hotels, Educational Institutions & Hospital Workers v Young Women Christian Association (Cause 114 of 2014) [2014] KEELRC 1243 (KLR)", Case Analysis (2014). Memorandum of Claim filed 26 March 2014 (Cause, Industrial Court, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1243/eng@2014-09-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.