Kenya Building Consruction, Timber and Furniture Industries Employees Union v Timsales Limited (Employment and Labour Relations Cause E029, E030 & E031 of 2021 (Consolidated)) [2023] KEELRC 2351 (KLR)
The bottom line
#Kenya's Employment Court ruled payslips alone don't prove workers were paid, awarding 117 former employees their unpaid salaries while rejecting unproved leave pay claims.
What this practically means
#Executive summary
#Key legal issues
#Whether the claims for leave pay and days worked were pleaded
The court held that leave pay and payment for days worked were part of the prayers sought in the pleading and awarded in the judgment of January 17, 2023, with figures to be computed by the labour officer; the respondent's contention that these were never pleaded was erroneous.
The court referred back to paragraph 2 of its judgment of January 17, 2023, which set out the prayers sought by the claimants in their pleading. Leave pay and days worked and not paid for were expressly included in those prayers, and the judgment had only left computation of figures to the labour officer. The court's decisions were therefore anchored on the pleadings, and the respondent's submission that the prayers were never sought or awarded was found to be incorrect.
Whether payslips constitute proof of payment
Payslips are not conclusive proof of payment; the respondent ought to have produced bank statements or vouchers signed by the claimants. Payment of June and July 2018 salaries was therefore not proved and the grievants are entitled to those salaries.
The burden of proving payment for days worked lay on the respondent. Although payslips were produced, the court held they do not affirm that an employee has actually been paid, as they are employer-prepared documents showing entitlements. The claimants' evidence that they had not been paid, leading to closure of the company and lock-out, remained unrebutted by proper proof of payment. The unpaid salaries for June 2018 up to July 27, 2018 must therefore be paid.
Whether the grievants were entitled to leave pay
The claim for leave pay was pleaded but not proved, as the grievants did not specify the periods during which they did not take leave or show that leave was applied for and denied; they are not entitled to leave pay for the unspecified periods.
Although the court had earlier directed computation of leave pay for all 117 grievants, on reconsideration the court found that the claimants were not explicit about the period during which they did not go on leave, and gave no indication that they applied for leave within a particular period and were denied it. In the absence of such particulars, the claim, though pleaded, was not proved to the required standard, and no leave pay was awarded.
Legal principles established
#- A payslip is not proof of payment of salary; proof of payment requires bank statements or vouchers signed by the employee.
- The burden of proving days worked and not paid lies with the claimant, while the burden of proving payment for days worked lies with the respondent.
- A claim that is pleaded but not proved cannot sustain an award; the claimant must specify the period and particulars of the entitlement.
Court orders
#- 1.That the claimants are entitled, in addition to what was calculated by the labour officer, to payment of their salaries with effect from June 2018 to July 27, 2018, to be agreed upon by the parties
- 2.That if not agreed upon, the parties to submit to this court their calculation for adoption and consideration
- 3.Costs in the cause
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution (Employment and Labour Relations Court) - original jurisdiction over employment and labour relations claims
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Building Consruction, Timber and Furniture Industries Employees Union v Timsales Limited (Employment and Labour Relations Cause E029, E030 & E031 of 2021 (Consolidated)) [2023] KEELRC 2351 (KLR)", Case Analysis (2023). Cause 56 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2351/eng@2023-10-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.