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ELRCPartially AllowedNot stated in the judgment as reproduced· [2018] KEELRC 1580 (KLR)

Evans Wafula Shikuku & 18 others v Jiangxi Zhongmei Engineering Construction Limited [2018] KEELRC 1580 (KLR)

Employment and Labour Relations Court
5 July 2018
2,247 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed 19 construction workers' claims for underpayment and unpaid overtime due to lack of evidence, but ordered their employer to compute unpaid annual leave.

What this practically means

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Executive summary

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Nineteen current and former employees of a construction company engaged to rehabilitate the Webuye-Kitale Road claimed underpayments, lost hours/overtime, house allowance, NSSF/NHIF/PAYE refunds and annual leave. The respondent did not file a defence or attend the hearing. Because the claim was within the Labour Officer's investigative powers under Section 87 of the Employment Act and Sections 35 and 48 of the Labour Institutions Act, the court referred the matter to the County Labour Officer, Trans Nzoia, whose report found that seven claimants had been paid terminal dues, twelve were still employed, the underpayment claim was based on hourly rates not provided for in the Building and Construction Industry Wages Order, overtime had been paid, and NSSF/NHIF were statutory deductions not refundable by the employer. In written submissions the claimants withdrew the house allowance, NSSF/NHIF and PAYE claims, leaving underpayments, overtime and annual leave. The court framed three issues: underpayment, overtime and annual leave. It found no evidence of hourly payment or underpayment, since the Labour Officer's report showed daily payments before and monthly payments after the Return to Work Formula, and dismissed the underpayment claim. The claimants' own time sheets recorded overtime at 1.5 and double rates, so the overtime claim was dismissed. However, no leave records existed, and the court found the claimants were not given leave or paid in lieu. Unable to tabulate leave entitlements for want of employment dates and last salaries, the court directed the respondent to compute leave due to each claimant up to April 2015. Underpayments and overtime were dismissed; only the annual leave claim succeeded.

Key legal issues

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01

Whether the claimants were underpaid

Holding

The claim for underpayments was dismissed as there was no evidence of hourly payment or underpayment; the claim was based on hourly rates not provided for in the Building and Construction Industry Wages Order, which provides for daily rates only.

Reasoning

The prayer for underpayments was based on hourly rates, but the County Labour Officer's report showed the claimants were paid monthly rates. The claimants did not comment on those rates in submissions. None of the documents filed stated the rate of pay; the time sheets showed hours worked but not payment made. The report showed payments per day before the Return to Work Formula and per month after, with the Formula requiring payment per the Regulation of Wages (General) (Amendment) Order. The court therefore found no evidence of underpayment.

p. 9
02

Whether the claimants were entitled to overtime

Holding

The overtime claim was dismissed because the claimants' own time sheets recorded normal hours and overtime at 1.5 and double rates, showing all overtime was recorded and paid for.

Reasoning

The claimants alleged they worked 12 hours daily from 7 a.m. to 7 p.m., giving 4 hours of unpaid overtime, plus 7 days without a rest day. However, the time sheets filed by the claimants themselves recorded both normal hours worked and overtime at 1.5 and double rates, corroborating the Labour Officer's note that all employees who worked extra hours were paid overtime, validated through records presented to the court. The court accordingly found no evidence of unpaid overtime.

p. 9
03

Whether the claimants were entitled to annual leave

Holding

The claim for annual leave succeeded; the claimants were not given leave or paid in lieu, but the court could not assess the entitlement for want of dates of employment, last dates worked and last salaries, so the respondent was directed to work out the leave due.

Reasoning

The Labour Officer's report did not refer to leave, and among the records filed there was no reflection of leave taken or paid. The claimants stated in both the claim and submissions that they were not allowed leave and were not paid in lieu. The court found the claim proved but could not tabulate the entitlement because the claimants did not state dates of employment, last date worked and last salary. The respondent was therefore directed to compute leave due up to April 2015, the claim having been filed on 5th May 2015.

p. 9

Legal principles established

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  • A party alleging underpayment bears the evidential burden of establishing the rate of pay actually received, and a claim based on hourly rates fails where the applicable Wages Order provides only for daily/monthly rates.
  • Where leave records are absent and no leave was given or paid in lieu, the employee is entitled to have leave worked out even if the court cannot itself tabulate the amount.

Court orders

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  1. 1.The prayers for underpayments and overtime are dismissed.
  2. 2.The respondent is directed to work out the leave due to each of the claimants up to the month of April 2015, being the last full month for tabulation as the claim was filed on 5th May 2015.

Authorities

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Legislation

  • Employment ActSection 87
  • Labour Institutions ActSection 35 as read with Section 48
  • Building and Construction Industry Wages OrderNot specified (daily rates for drivers, artisans, general workers)
  • Regulation of Wages (General) (Amendment) OrderNot specified

Cases cited (3)

  • Evans Katiezo Aligulah -v- Eldomatt Wholesale and Supermarket Limited
    [2016] eKLR
  • John Rioba Maugo -v- Riley Falcon Security Services Limited
    [2016] eKLR
  • Kenya Guards and Allied Workers Union -v- Lavington Security Limited
    [2013] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment and Labour Relations Court; claim dated 27th April 2015 filed 5th May 2015 (specific provision not cited)

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, "Evans Wafula Shikuku & 18 others v Jiangxi Zhongmei Engineering Construction Limited [2018] KEELRC 1580 (KLR)", Case Analysis (2018). Not stated in the judgment as reproduced. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1580/eng@2018-07-05

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