Kenya Union of Domestic, Hotels, Educational Institutions and Hospitals Workers v University Council of Technical University of Mombasa (Cause E002 of 2021) [2023] KEELRC 1669 (KLR)

a. This court be pleased to declare the respondent’s refusal to pay service gratuity to the grievants is unlawful and illegal; b. The court be pleased to issue an order directing the respondent to pay the grievants Ksh 25,910,285.80 for service gratuity c. The court be pleased to issue an order directing the respondent to issue certificate of service to the grievants. d. The respondent to meet the costs and interest at court rates from the date of termination. Tthe claimant filed statements and pursuant to Rule 9 of the Employment and Labour Relations Court (Procedure) Rules, 2016 filed the particulars of each grievant. 6. The claims are as follows; 1. Ali Rajab Suleman Date of Employment; July 1, 2011 Occupation Accommodation Assistant Date of Termination January 10, 2018 Last Salary Kshs 15, 810.00 Duration in Employment; 6 years and 6 months 2. Hamisi Mchombo Ndaro Date of Employment; July 1, 2011 Occupation Catering Assistant Date of Termination January 10, 2018 Last Salary Kshs 15, 810.00 Duration in Employment; 6 years and 6 months 3. Pili Mohamed Mangwaya Date of Employment; July 1, 2011 Occupation Accommodation Assistant Date of Termination January 10, 2018 Last salary Kshs 15, 810.00 Duration in Employment; 6 years and 6 months 4. Eunice Achieng Mbuya Date of Employment; October 6, 2011 Occupation Laundry Assistant Date of Termination January 10, 2018 Last salary Kshs 15, 810.00 Duration in Employment; 6 years and 4 months https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1669/eng@2023-06-29 2

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5. Said Salim Yuga Date of Employment; July 1, 2011 Occupation Environment Assistant Date of Termination January 10, 2018 Last Salary Kshs 15, 810.00 Duration in Employment; 6 years and 6 months 6. Zainabu Uchi Abdu Date of Employment; July 1, 2011 Occupation Accommodation Assistant Date of Termination January 10, 2018 Last Salary Kshs 15, 810.00 Duration in Employment; 6 years and 6 months 7. Mwanaisha Ramadhan Mapengo Date of Employment; July 1, 2011 Occupation Accommodation Assistant Date of Termination January 10, 2018 Last Salary Kshs 15, 810.00 Duration in Employment; 6 years and 6 months 8. James Ngua George Date of Employment; January 1, 2011 Occupation Ofice Assistant Date of Termination January 10, 2018 Last salary Kshs 15, 810.00 Duration in Employment; 6 years and 6 months 9. Changawa Kazungu Kapombe Date of Employment; July 1, 2011 Occupation Sewerage Attendant Date of Termination January 10, 2018 Last Salary Kshs 15, 810.00 Duration in Employment; 6 years and 6 months 10. Martin Ngoka Mazera Date of Employment; July 1, 2011 Occupation Accommodation Assistant https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1669/eng@2023-06-29 3

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Date of Termination January 10, 2018 Last Salary Kshs 15, 810.00 Duration in Employment; 6 years and 6 months 11. Wyclifie Enyangu Date of Employment; January 12, 2017 Occupation Catering Assistant Date of Termination January 11, 2018 Last Salary Kshs 15, 810.00 Duration in Employment; 1 year. 12. Fatuma Mohamed Hamisi Date of Employment; 1st July, 2011 Occupation Catering Assistant Date of Termination 9th January, 2018 Last Salary Kshs. 15, 810.00 Duration in Employment; 6 years and 6 months 13. Ndaa Jefwa Kiringi Date of Employment; July 1, 2011 Occupation Environmental Assistant Date of Termination January 10, 2018 Last Salary Kshs 15,810.00 Duration in Employment; 6 years and 6 months 14. Fatuma Cheshi Athumani Date of Employment; July 1, 2011 Occupation Catering Assistant Date of Termination January 11, 2018 Last Salary Kshs 15, 810.00 Duration in Employment; 6 years and 6 months 15. Zainabu Salim Vuga Date of Employment; 1st July, 2011 Occupation Secretary III Date of Termination 11th January, 2018 Last Salary Kshs 15, 810.00 Duration in Employment; 6 years and 6 months 16. Rose Khaseke Makadia https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1669/eng@2023-06-29 4

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Date of Employment; 1st July, 2011 Occupation Catering Assistant Date of Termination 11th January, 2018 Last Salary Kshs 29, 550.00 Duration in Employment; 6 years and 6 months 17. Dhadho Kombo Jillo Date of Employment; 1st July, 2011 Occupation Catering Assistant Date of Termination 9th January, 2018 Last Salary Kshs 15, 810.00 Duration in Employment; 6 years and 6 months 18. Susan Atieno Mboya Date of Employment; 11th January, 2011 Occupation Accommodation Assistant Date of Termination 11th January, 2018 Last Salary Kshs 15,810.00 Duration in Employment; 5 years and 6 month 19. Samwel Mwatsuma Onesmas Date of Employment; 11th January, 2017 Occupation Ofice Assistant Last Salary Kshs 15, 810.00 Date of Termination 10th January, 2018 Duration in Employment; l year. 20. Lydia Kerubo Motachi Date of Employment; 11th January, 2017 Occupation Ofice Assistant Date of Termination 1st July, 2011 Last Salary Kshs 15, 810.00 Duration in Employment; 6 years and 6 months. 21. Jackline Mnyazi Hausiku Date of Employment; 1st July, 2012 Occupation Ofice Assistant Date of Termination 10th January, 2018 Last Salary Kshs 15, 810.00 Duration in Employment; 5years and 6 months 22. Justine Lugo https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1669/eng@2023-06-29 5

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Date of Employment; 1st July, 2011 Occupation Environmental Assistant Last salary Kshs 15, 810.00 Date of termination 10th January, 2018 Duration in Employment; 6 years and 6 months 23. Enos Alela Makutwah Date of Employment; 1st January, 2016 Occupation Environmental Assistant Last salary Kshs 15,810.00 Date of termination 31st December 2016 Duration in Employment; l year 24. Beth Wachera Kamau Date of Employment; 1st July, 2011 Occupation Catering Assistant Last salary Kshs 15, 810.00 Date of termination 11th January, 2018 Duration in Employment; 6 years and 6 months 25. Mahenzo Francis Kahindi Date of Employment; 1st July,2011 Occupation Catering Assistant Last salary Kshs 15, 810.00 Date of termination 11th January, 2018 Duration in Employment; 6 years and 6 months 26. Chai Baya Mganga Date of Employment; 1st July,2011 Occupation Environmental Assistant Last Salary Kshs 15, 810.00 Date of termination 10th January, 2018 Duration in Employment; 6 years and 6 month 27. Alice Chiku Justus Date of Employment; 1st October, 2011 Occupation Accommodation Assistant Last salary Kshs 15, 810.00 https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1669/eng@2023-06-29 6

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Date of termination 11th January 2018 Duration in Employment; 6 years and 3 months 28. Dorothy Nechesa Indeche Date of Employment; 1st October, 2011 Occupation Library Attendant Date of termination; 9th January 2018 Duration in Employment; 6 years and 3months 29. Rehema Suleiman Ali Date of Employment; 1st July, 2011 Occupation Catering Assistant. Date of Termination 10th January,2018 Duration in Service 6 years and 6 months 30. Bahati Juma Mwalimu Date of Employment; 1st October, 2011 Occupation Environmental Assistant. Date of termination; 9th January 2018 Duration in Service 6 years and 6 months 31. Mwanamisi Suleiman Wendo Date of Employment; 1st May, 2013 Occupation Accommodation Assistant Last salary Kshs 15, 810.00 Date of termination 11th January, 2018 Duration in Employment; 4 years and 6 months 32. Rama Ali Chama Date of Employment; 10th January, 2017 Occupation Catering Assistant Last Salary Kshs 15, 810.00 Date of termination 10th January, 2012 Duration in Employment; 5 years and 9 months 33. Rehema Yusuf Fakii Date of Employment; 1st May 2014 Occupation Accommodation Assistant Last salary Kshs 15, 810.00 Date of termination 10th January, 2018 https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1669/eng@2023-06-29 7

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Duration in Employment; 3 years and 6 months 34. Ibrahim Said Mwafrika Date of Employment; 1st May 2014 Occupation Catering Assistant Last salary Kshs 15, 810.00 Date of termination 9th January, 2018 Duration in Employment; 3 years and 6 months 35. Abdalla Said Mwamasare Date of Employment; 1st May, 2015 Occupation Accommodation Assistant Last salary Kshs 15, 810.00 Date of termination 9th January, 2018 Duration in Employment; 2 years and 6 months 36. Popo Mohammed Kassim Date of Employment; 1st August, 2015 Occupation Administrator Assistant Last Salary Kshs 21,330.00 Date of termination 11th January, 2018 Duration in Employment; 3 years and 5 months 37. Jeremiah Mwaiwa Vuva Date of Employment; 1st October, 2011 Occupation Welder Assistant Last Salary Kshs 29,500.00 Date of termination 11th January, 2018 Duration in Employment; 6 years and 2 months 38. Daniel Makosi Date of Employment; 1st July, 2011 Occupation Masonry Assistant Last Salary Kshs 29, 550.00 Date of termination 11th January, 2018 Duration in Employment; 6 years and 6 months 39. Zaituni Juma Swazuri Date of Employment; 11th June, 2011 https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1669/eng@2023-06-29 8

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Occupation Accommodation Assistant Last salary Kshs 24, 330.00 Date of termination 11th January, 2018 Duration in Employment; 6 years and 6 months 40. Thomas Mwarashu Ngwale Date of Employment; 12th January, 2017 Occupation Catering Assistant Last Salary Kshs 15, 810.00 Date of termination 11th January, 2018 Duration in Employment; 1 year 41. Mwanakombo Mwinyihaji Mpendakula Date of Employment; 6th December, 2011 Occupation Environmental Assistant Last Salary Kshs 15, 810.00 Date of Termination 11th January, 2018 Duration in Employment; 6 years 42. Emmanuel Masabo Date of Employment; 8th December, 2011 Occupation Environmental Assistant Last Salary Kshs 15, 810.00 Date of termination 11th January, 2018 Duration in Employment; 6 years and 1 month 43. Robert Fondo Karisa Date of Employment; 1st March, 2012 Occupation Environmental Assistant Last Salary Kshs 15, 810.00 Date of termination 10th January, 2018 Duration in Employment; 5 years and 9 months 44. Anthony Kimani Ndichu Date of Employment; 1st March, 2012 Occupation Environmental Assistant Last Salary Kshs 15,810.00 Date of termination 11th January, 2018 https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1669/eng@2023-06-29 9

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Duration in Employment; 5 years and 9 months 45. Rodges Kaingu Ziro Date of Employment; 13th December, 2011 Occupation Environmental Assistant Last salary Kshs 15, 810.00 Date of termination 11th January, 2018 Duration in Employment; 6 years 46. Sinangowa Abdulrahman Mlao Date of Employment; 1st December,2011 Occupation Systems Data Oficer Assistant Last Salary Kshs 35,700 Date of Termination 11th January, 2018 Duration in Employment; 6 years 47. Riziki Ali Mwachela Date of Employment; 12th March, 2012 Occupation Accommodation Assistant Last salary Kshs 15, 810.00 Date of termination 11th January, 2018 Duration in Employment; 5 years and 9 months 48. Kenga Sophia Date of Employment; 11th January, 2012 Occupation Ofice Assistant Last Salary Kshs. 15, 810.00 Date of termination 10th January, 2018 Duration in Employment; 5 years 9 months 49. Valentine Mesi Mwaruta Employment; 1st July, 2011 Occupation Accommodation Assistant Last Salary Kshs. 15, 810.00 Date of termination 11th January, 2018 Duration in Employment; 6 years and 6 months 50. Pili Mohamed Buki Date of Employment; 1st May, 2013 https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1669/eng@2023-06-29 10

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Occupation Sanitary Attendant Last salary Kshs. 15,810.00 Date of termination 11th January, 2018 Duration in Employment; 4 years and 6 months 51. Shadrack Mbithi Ndonye Date of Employment; 11th January, 2017 Occupation System Data Oficer Last Salary Kshs. 35,700.00 Date of Termination 10th January, 2018 Duration in Employment; l year 52. Sultan Ali Mwadzuya Date of Employment; 16th May, 2016 Occupation Catering Assistant Last Salary Kshs. 15,810.00 Date of termination 9th January, 2018 Duration in Employment; 2 years 53. Stephen Ndegwa Mwanyoha Date of Employment; 1st May, 2014 Occupation Administrative Assistant Last Salary Kshs. 35,700 Date of termination 11th January, 2018 Duration in Employment; 3 years and 7 months 54. Julian Idza Chai Date of Employment; 1st May 2014 Occupation Catering Assistant Last Salary Kshs. 15,810.00 Date of termination 11th January, 2018 Duration in Employment; 3 years and 6 months 55. Bernard Munga Mkomu Date of Employment; 22nd August, 2015 Occupation Catering Assistant Last Salary Kshs. 15,810.00 Date of termination 11th January, 2018 https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1669/eng@2023-06-29 11

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Duration in Employment; 3 years and 4 months 56. Herman Mwaivugha Mwakudu Date of Employment; 1st August, 2015 Occupation Catering Assistant Last Salary Kshs. 15,810.00 Date of Termination 11th January, 2018 Duration in Employment; 3 years and 4 years 57. Davis Mkwinyo Chiriba Date of Employment; 1st July,2011 Occupation Environment Assistant Last Salary Kshs. 15,810.00 Date of termination 11th January, 2018 Duration in Employment; 6 years and 6 months 58. Adelaide Akello Oloo Date of Employment; 12th January 2017 Occupation Accommodation Assistant Last Salary Kshs. 15,810.00 Date of termination 11th January, 2018 Duration in Employment; 1 year 59. Edison Kaingu Date of Employment; 1st July, 2011 Occupation Catering Assistant. Last Salary Kshs. 15,810.00 Date of termination 11th January, 2018 Duration in Employment; 6 years 6 Months 60. Elizabeth Wangari Njuhigu Date of Employment; 1st August 2015 Occupation Secretary Assistant Last Salary Kshs. 21, 330.00 Date of termination 11th January, 2018 Duration in Employment; 3 years 61. Mariana Wangui Kamau Employment; 17th October 2013 https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1669/eng@2023-06-29 12

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Occupation Accommodation Assistant Last Salary Kshs. 15, 810.00 Date of Termination 11th January, 2018 Duration in Employment; 4 years and 3 months 62. Patrick N. Lwambi Date of Employment; 1st October 2011 Occupation Painter/decorator Assistant Last Salary Kshs. 29, 550.00 Date of termination 11th January 2018 Duration in Employment; 6 years and 2 months 63. Swaleh Shee Swaleh Date of Employment; 1st May, 2015 Occupation Catering Assistant Last salary Kshs. 29,550.00 Date of termination 11th January, 2018 Duration in Employment; 3 years 5 months 64. Ali Kibwana Date of Employment; 1st October, 2011 Occupation Environmental Assistant Last Salary Kshs. 15,810 Date of termination 11th January, 2018 Duration in Employment; 6 years and 6 months 65. Dickson Mchura Mgongo Date of Employment; 1st October 2011 Occupation Environmental Assistant Last Salary Kshs. 15,810.00 Date of termination 11th January, 2018 Duration in Employment; 6 years and 6 months 66. Nancy Chelimo Date of Employment; 1st July, 2011 Occupation Catering Assistant Last Salary Kshs. 21,330.00 Date of Termination 11th January, 2018 https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1669/eng@2023-06-29 13

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Duration in Employment; 6 years and 6 months 67. Name; James Taura Date of Employment; 1st July, 2011 Occupation Accommodation Assistant Last salary Kshs. 15, 810.00 Date of termination 11th January, 2018 Duration in Employment; 6 years and 6 months 7. In response, the respondent’s case is that the claimant lacks locus standi to represent 12 grievants who are not members of the union, 1. Mwanaisha Ramadham Mpengo; 2. Fatuma Chesi Athman; 3. Rose Makadia Khaseke; 4. Dhadho Rumbo Jilloh; 5. Rehema Suleiman Ali; 6. Rama Ali Rama; 7. Popo Mohammed Kassim; 8. Anthony Kimani Ndichu; 9. Shadrack Mbithi Ndonye; 10. Edison Kaingu; 11. Elizabeth Wangari Njuhigu; 12. Swaleh Shee Swaleh. 8. The 12 cannot be represented in these proceedings by the claimant under Section 73(3) of the Labour Relations Act. 9. The claim contravenes Rule 5(b) (I) and (ii) of the Employment and Labour Relations Court Procedure Rules. 10. The response is also that there was no termination of employment as alleged since the contracts expired by efiuxion of time. The respondent had no obligation to renew the employment contracts and no employee was victimised. 11. The only claim sought is that of gratuity which is not due. Gratuity is only payable if the employment contract provides for the same. In this case, the grievants contracts did not provide for payment of gratuity. The CBA, clause 25.0 provides for gratuity payment only to an employee who terminates employment or employment is terminated. There was no termination of employment to justify a claim for payment of gratuity in terms of clause 22.2 of the CBA. 12. In the written submissions, the respondent’s case is that under clause 25.0 of the CBA the payment of gratuity is not automatic. It must result from termination of employment as held in Pathfinder International Kenya Limited v Stephen Ndegwa Mwangi [2019] eklr. The CBA terms under clause https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1669/eng@2023-06-29 14

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25.0 are that gratuity pay accrues where the employee terminates employment after one year of service, where an employee retires or where the employee dies while in service or there is termination of employment for reasons of gross misconduct and gratuity is paid at the rate of 31% of the employees monthly basic salary for the number of months worked. Such gratuity is then transferred to the Pension Scheme. 13. The grievants do not qualify for gratuity pay since they were under fixed term contract which lapsed and there was no termination of employment as required under clause 22.1 to warrant a claim for the same. The claims made should be dismissed with costs. 14. The legal issues and objections with regard to the standing of the claimant to represent 12 grievants, whether the suit is res judicata and whether the respondent can be sued were all addressed by the court in the ruling delivered on 29 October 2021. these objections were dismissed and the claimant allowed to amend the Memorandum of Claim accordingly. 15. In the written submissions, the respondent has reiterated that the 12 grievants not members of the claimant cannot benefit from this claim since they were not members of the claimant and in terms of Section 73(3) of the LRA, the claimant has no locus standi to act for these 12 grievant. 16. In employment and labour relations, the concept of fair labour practices encompasses all employees at the shop fioor without distinction of rank, standing or role. See Elizabeth Washeke & 62 others v Airtel Networks (K) Limited & another [2013] eklr that; … Fairness comprehends that regard must be given not only to the position and interests of the workers, but also those of the employer, in order to make a balanced and equitable assessment. … The fairness required in the determination of an unfair labour practice must be fairness towards both employer and employee. Fairness to both means the absence of bias in favour of either. … There are no underdogs. 17. Where employees are the shop fioor, whether unionised or not, whether unionisable or not, there is equal protection of the law without placing any employee to any disadvantage. In conferring employment benefits, no employee should be disadvantaged simply because they are unionisable but have not joined the union. Such would be discriminatory and contrary to Section 5 of the Employment Act, 2007 read together with Article 27 and 41 of the Constitution. 18. A best practice in this regard is to be found under Section 40(1)(d) of the Employment Act, 2007 when declaring a redundancy. No employee, unionised or not should be placed at a disadvantage; (d) where there is in existence a collective agreement between an employer and a trade union setting out terminal benefits payable upon redundancy; the employer has not placed the employee at a disadvantage for being or not being a member of the trade union; 19. The rationale is to be found under Section 49 of the LRA. There are protections with regard to employees who are not unionised so that they can benefit from a given CBA retroactively and proactive. 20. The 12 cited grievants cannot stand disadvantaged and section 73(3) of the LRA cannot apply to negate the rights and benefits secured under the same law, where a trade union is allowed to represent its members in court but not by placing other employees at a disadvantage as such would go contrary to Sections 5 and 40 of the Employment Act, 2007 and negate the Constitutional principles against non-discrimination against any employee and to ensure fair labour practices. 21. More fundamentally are the provisions of Section 26(2) of the Employment Act, 2007 which directs the court to apply terms and conditions of a contract of service as regulated under any CBA in a manner https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1669/eng@2023-06-29 15

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that is favourable to the employee if the contract of service issued is less favourable. This is one such case where the 12 grievants should not be placed at a disadvantage. 2. Where the terms and conditions of a contract of service are regulated by any regulations, as agreed in any collective agreement or contract between the parties or enacted by any other written law, decreed by any judgment award or order of the Court are more favourable to an employee than the terms provided in this Part and Part VI, then such favourable terms and conditions of service shall apply. 22. What then constitutes termination of employment for the purpose of payment of gratuity in this case? 23. The claimant has relied on the provisions of clause 25.0 to claim payment of gratuity for the grievants which is challenged by the respondent on the grounds that employment contracts were fixed and they lapsed by efiuxion of time and there was no termination of employment. 24. The Employment Act, 2007 or the LRA do not define the word termination of employment. This can only be discerned from the law. 25 Section 18 of the Employment Act, 2007 is addressing the various types of employment regimes contemplates casual employment which ends with each day and wages paid daily. 26. There is piece-work which completes are end of given task with payment of the agreed wages. 27. There is employment going beyond a given month with payment of wages monthly. 28. There is fixed term contract with a given start and end date. 29. All these types of employments start and end and are regulated in law. Such regulation is to ensure the accruing benefits arise at the end of each type of contract. There is a start and end. Such end is the date/time terminating each type of employment. It cannot therefore serve justice to assert that employment can only terminate where the employee exits employment upon death, dismissal due to gross misconduct, retirement of resignation. These, in my view are just but modes of various terminations of employment and which includes, termination by efiuxion of time. 30. Under clause 25.0 of the CBA between the parties herein, it was agreed that; Service gratuity Subject to the provisions of this agreement, gratuity shall be payable to employees on temporary contact terms of service as follows:a. Where an employee terminates his/her service after one year of service. b. Where an employee retires in accordance with the retirement clause of this Agreement. c. Where an employee retires or is retired on medical grounds after serving for one year. d. When an employee dies after serving for one year. e. When an employee has his/her services terminated for reasons other than gross misconduct and he/she has served for at least one year continuously. f. Gratuity payable under this agreement shall be at the rate of thirty one per cent (31%) of the employee’s monthly basic salary for the number of months worked with the University. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1669/eng@2023-06-29 16

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g. … Under clause (e ) above, parties agreed that an employee, whose employment is terminated for reasons other than gross misconduct, has served for at least one year continuously, gratuity is payable. In my humble review, the court reading of these provisions, employees on fixed term contract which go beyond one year, at the end of term, the benefit of gratuity accrue. 31. The grievants worked for the respondent for periods beyond one year as outlined above. Employment terminated. It was not as a result of gross misconduct so as to deny them the benefits under clause 25.0 of the CBA. 32. Accordingly, the grievants are all entitled to payment of gratuity for the entire period of service at the rate of 31% of the employee’s monthly basic salary for the total number of months worked with the respondent in terms of clause 25.0 of the CBA. 33. The tabulation of the claims at Ksh.25,910,295.80 is hereby confirmed. 32. The claimant is also entitled to costs of this suit. DELIVERED IN OPEN COURT AT MOMBASA THIS 29 DAY OF JUNE, 2023. M. MBARŨ JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1669/eng@2023-06-29 17

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