Peter Waswani Makunda & 13 others v Jiangxi Zhongmei Engineering Construction Company Limited [2018] KEELRC 1590 (KLR)
The bottom line
#Kenya's Employment Court ruled that workers who sign full and final settlement of terminal dues cannot reopen those claims, but unpaid annual leave remains recoverable.
What this practically means
#Executive summary
#Key legal issues
#Underpayment of wages
The underpayment claims fail for all claimants
The Labour Officer found that counsel's calculations were based on an hourly rate not provided for under the Building and Construction Industry Wages Order, which provides daily rates for drivers, artisans and general workers. Following the Return to Work Formula, the claimants' salaries were converted to monthly rates. The four ex-claimants were paid terminal dues which they accepted in full and final settlement.
Lost hours/overtime
The lost hours claims fail; overtime was recorded and paid
The Labour Officer's report indicated that whenever employees worked overtime it was recorded and paid, at one and a half times the hourly rate on weekdays and double the rate on rest days and public holidays. The payslips filed with the claim confirmed payment of all overtime worked. The claimants did not rebut this evidence.
Annual leave
The nine claimants still in employment are entitled to annual leave, to be computed by the respondent
The respondent admitted in its defence that it had not been paying annual leave. The nine claimants still in employment as at July 2016 are therefore entitled to annual leave. The court could not tabulate the amounts because the claimants did not supply dates of employment and last salary, so it directed the respondent to compute and pay leave due from date of recruitment to December 2014.
Legal principles established
#- Employees who accept and sign for terminal dues in full and final settlement cannot later claim underpayments, lost hours, notice pay or annual leave for that employment
- An admission in the defence that annual leave was not paid entitles claimants still in employment to annual leave
Court orders
#- 1.The respondent is directed to work out and pay the nine claimants still in employment their annual leave due from date of recruitment to December 2014
- 2.All other prayers are dismissed
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims (Employment Act No. 11 of 2007 and Labour Institutions Act referred to)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Waswani Makunda & 13 others v Jiangxi Zhongmei Engineering Construction Company Limited [2018] KEELRC 1590 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1590/eng@2018-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.