Serah Nthule Muthiani & 9 others v Chandaria Industries Limited [2020] KEELRC 1753 (KLR)

CHANDARIA INDUSTRIES LIMITED......RESPONDENT CONSOLIDATED WITH CAUSE NO. 526 OF 2015 BENARD SHITINDO KHAYO.......................... CLAIMANT VERSUS CHANDARIA INDUSTRIES LIMITED......RESPONDENT CONSOLIDATED WITH CAUSE NO. 688 OF 2015 NELSON OGOLA MURUBI..............................CLAIMANT VERSUS CHANDARIA INDUSTRIES LIMITED.......RESPONDENT CONSOLIDATED WITH CAUSE NO. 690 OF 2015 SIMON NANZAYI ACHIEYA.............................CLAIMANT VERSUS CHANDARIA INDUSTRIES LIMITED....... RESPONDENT CONSOLIDATED WITH CAUSE NO. 1347 OF 2015 LINUS OUMA OKONGO...................................CLAIMANT VERSUS CHANDARIA INDUSTRIES LIMITED......RESPONDENT CONSOLIDATED WITH CAUSE NO. 1537 OF 2015 NELSON OKELO ALOO..................................CLAIMANT VERSUS CHANDARIA INDUSTRIES LIMITED.....RESPONDENT JUDGMENT The judgment herein is in respect of Cause Numbers 309 of 2015, 316 of 2015, 317 of 2015, 466 of 2015, 524 of 2015, 526 of 2015, 688 of 2015, 690 of 2015, 1347 of 2015 and 1537 of 2015. All the claimants in these suits are former employees of the respondent and their services were terminated together under the same circumstances. Similar suits were filed by claimants in Cause No. 808 of 2015 consolidated with Cause No 312 of 2015 wherein judgment was delivered on 11th October 2019. The court awarded the two claimants therein the following – “I therefore find that the claimants were not declared redundant but were terminated following their refusal to either relocate to

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another department or take leave while the respondent overhauled its machinery and equipment. I further find that the union was fully involved in the exercise. On remedies, the claimants prayed for notice, severance pay, annual leave and house allowance. They confirmed receipt of Kshs.64,962.30 each made up of service pay, leave and notice less PAYE. I however note that service was paid to both for 6 years’ service yet they had each worked for 8 years. I further note that they were each paid notice at Kshs.3,297/= each instead of 2 months’ salary as per CBA Clause 20 which provides that an employee who has worked for between 6 and 10 years is entitled to 2 months’ notice. I would therefore calculate the payments due to the claimants as follows – Immaculate Mbithe Mutunga – 1st Claimant i. Notice for 2 months at Kshs.11,304 per month for 2 months Kshs.22,608 (less paid) (Kshs.3,297) Kshs.19,311 ii. Service (balance of 2 years) at 22 days per year of service Kshs.19,130 Total Kshs.38,441 Jackson Muindi Kiilu – 2nd Claimant i. Notice for 2 months at Kshs.17,304 per month for 2 months (less paid) Kshs.34,608 (Kshs.3,297) Kshs.31,311 ii. Service (balance of 2 years) at 22 days per year of service Kshs.29,383 Total Kshs. 60,694 When the parties appeared in court on 12 th November 2019, they agreed that the judgment in Cause No. 808 of 2015 be adopted in all the other related suits. The CBA provides for notice at service at Clauses 20 as follows – “(20) TERMINATION OF SERVICE a. After the completion of satisfactory probationary period, service will be terminable by either party giving notice or pay in-lieu thereof as outlined hereunder. • • • Employees with 1 to 5 completed years of service – 1 month. Employees with 6 to 10 completed years of service – 2 months. Employees with over 10 completed years of service – 3 months. b. Any employee whose termination may be called for on medical grounds (Certified by Registered Medical Practitioner) be permitted in accordance with provisions of Clause 19(a).” Claimants were paid severance pay in accordance with the redundancy clause of the CBA. Clause 21(e) of the CBA on Entitlement of redundant employees states as follows – “(e) Entitlement of Redundant Employees

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In the event of any employee being declared redundant will be entitled to: - • • The normal notice or pay in lieu of notice as defined in the Agreement. Payment of wages, overtime and any other remuneration which may be due to him calculated up to the date on which he/she ceases to work. • • Pro-rata leave and leave allowance entitlement in accordance with the agreement. The redundant employee shall be entitled to twenty two (22) days for each completed year of service calculated on basic wages earned at the time of redundancy.” In line with the judgment in Cause No. 808 of 2015 above, I award each of the claimants as follows – YEARS LAST CAUSE NO./NAME NOTICE BALANCE OF BALANCE SERVICE TOTAL SALARY PAID NOTICE 6 13,680 3,297 24,063 Paid in full 24,063.00 9 17,304 3,297 31,311 31,086.00 62,397.00 2.4 11,304 3,297 8,007 Paid in full 8,007.00 4.7 11,304 3,297 8,007 Paid in full 8,007.00 8 17,304 3,297 31,311 20,724.00 52,035.00 8.5 13,680 3,297 24,063 25,905.00 49,968.00 8 17,304 3,297 31,311 Paid in full 31,311.00 6 13,680 3,297 24,063 Paid in full 24,063.00 8.1 17,304 3,297 31,311 21,760.20 53,071.20 8 17,304 3,297 31,311 20,724.00 52,035.00 SERVICE Cause No. 309 of 2015 Alex Kissah Lucia Cause No. 316 of 2015 Risky Muhati Shiole Cause No. 317 of 2015 Elvis Baraza Wambani Cause No. 466 of 2015 Lillian Mugambi Nkatha Cause No. 524 of 2015 Ongeri Makori Clive Cause No. 526 of 2015 Benard Shitindo Khayo Cause No. 688 of 2015 Nelson Ogola Murubi Cause No. 690 of 2015 Simon Achieya Nyanzayi Cause N`o. 1347 of 2015 Linus Ouma Okongo Cause No. 1537 of 2015 Nelson Okelo Aloo

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The respondent shall pay costs to the claimants. Instruction fees shall be based on the consolidated judgment as the cases were heard together. DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 31ST DAY OF JANUARY 2020 MAUREEN ONYANGO JUDGE

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