Kenya Union of Entertainment & Music Industry Empoyees v Bomas of Kenya Ltd [2015] KEELRC 827 (KLR)
The bottom line
#The union's claim failed mainly because it couldn't prove or quantify unpaid dues and wages, even though Bomas admitted underpaying temporary staff.
What this practically means
#Executive summary
#Key legal issues
#Burden of proof of non-deduction and non-remittance of union dues
The claim failed because the claimant did not prove the respondent failed to deduct and remit dues for the 40 employees listed
The claimant alleged the respondent refused to deduct union dues for 40 employees after receiving check-off forms on 25th January 2014. The respondent denied receiving that check-off form, contending the one served contained 53 names, and asserted it had remitted dues in respect of those employees. The court found the claimant produced no evidence of non-remittance and therefore the claimant's burden of proof was not discharged.
Underpayment of temporary employees contrary to the CBA
The court found as a fact that the respondent underpaid the grievants and failed to pay house allowances, annual leave and other CBA entitlements, but dismissed the claim for lack of quantification
From the pleadings, affidavits and wage sheets, the court found the parties had a valid recognition agreement and a CBA registered on 4th March 2014 covering July 2012 to June 2014. The respondent admitted in the further affidavit of its HR Manager that temporary employees were not paid CBA terms, and the wage sheets confirmed underpayment and omission of house allowances and leave. However, the claimant never tabulated the underpayments due to each of the 40 grievants, so the court could not award arrears, though it ordered regularization going forward.
Status of temporary employees engaged intermittently
The respondent employs temporary employees paid monthly, some for periods exceeding one year
The respondent characterized the grievants as casuals engaged intermittently whenever events occurred and paid at the end of each day. The court, however, found on the material before it that the respondent employs temporary employees paid on a monthly basis, some of whom had served for periods longer than one year. This factual finding underpinned the order directing the respondent to regularize payment for temporary employees in conformity with their grades under the CBA.
Legal principles established
#- A party alleging underpayment must adduce and quantify evidence of the amounts due
- A party alleging non-remittance of union dues must prove it
Court orders
#- 1.The claimant has not proved its claim against the respondent; the claim is dismissed
- 2.The respondent to issue records of the 40 employees in claimant's list at Appendix 2 of the claim indicating date of employment and rate of pay to the claimant
- 3.The respondent to regularize payment for temporary employees to conform with the pay for their grades in the CBA
- 4.Any dispute arising relating to the decision should be filed as a fresh dispute at the Ministry of Labour as provided in the Labour Relations Act
- 5.Each party shall bear its costs
- Jurisdiction invoked
- Employment and Labour relations dispute under the Labour Relations Act and the Employment Act 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Entertainment & Music Industry Empoyees v Bomas of Kenya Ltd [2015] KEELRC 827 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/827/eng@2015-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.