Kenya Union of Commercial, Food and Allied Workers v National Social Security Fund (Cause 968 of 2017) [2022] KEELRC 52 (KLR)
The bottom line
#Kenya's Employment Court confirmed that a Collective Bargaining Agreement overrides an employer's HR manual, so the NSSF employee won his transfer allowance.
What this practically means
#Executive summary
#Key legal issues
#Applicability of the CBA 2013/2015 to a transfer before its registration
The grievant is entitled to transfer allowance under Clause 7.4 of the CBA despite the transfer preceding registration, as the CBA was effective from July 1, 2013.
The court accepted the Claimant's argument that although the CBA was signed on March 23, 2015, it was effective from July 1, 2013, with arrears paid from that effective date. The Respondent's unilateral changes to the Human Resource Manual were made while the CBA was under negotiation, without proposing the change in negotiations, without an effective date, and contrary to the Manual's own conflict clause preferring the CBA. The grievant's uncontroverted evidence that the Managing Trustee agreed Kitengela transfers attracted allowance was accepted.
Primacy of the CBA over the Human Resource Manual
The CBA prevails over the Human Resource Manual where the two conflict.
Paragraph 1.2 of the Human Resource Manual expressly provides that where the Policies and Regulations conflict with the CBA in force, the latter prevails. The court held that a clause that would deny an employee a CBA benefit must be interpreted in the manner favourable to the employee. The Respondent's 50-kilometre distance threshold in the Manual could not defeat the express CBA entitlement.
Legal principles established
#- Where a Human Resource Manual conflicts with a CBA in force, the CBA prevails; clauses denying a CBA benefit must be interpreted in favour of the employee.
- An employer cannot vary a CBA clause unilaterally through a Board-approved circular while the CBA is under negotiation, and a circular silent on its effective date cannot override the CBA.
Court orders
#- 1.Declaration that the Respondent's letter dated 4th November 2014 is inconsistent with Clause 7.4 of the registered CBA 2013/2015 and therefore null and void (as sought and upheld)
- 2.The grievant is entitled to transfer allowance in accordance with Clause 7.4 of the CBA, and the Respondent is directed to pay the same
- 3.Respondent to pay costs of Kshs.50,000/- to the Claimant
- Jurisdiction invoked
- Jurisdiction under the Employment and Labour Relations Court Act and Labour Relations Act over disputes between a trade union and employer under a registered CBA
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Hassani v Kenya Ports Authority (Cause E042 of 2023) [2024] KEELRC 2792 (KLR)[2024] KEELRC 2792 (KLR)14 Nov 2024followed
Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial, Food and Allied Workers v National Social Security Fund (Cause 968 of 2017) [2022] KEELRC 52 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/52/eng@2022-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.