Rashid Katite Mtava v Ghanysham Builders Ltd [2014] eKLR

Key Facts

Issues

• Whether the Respondent owed two months' wages in lieu of notice under the CBA, given the Claimant's three-year service, after admitting only one month was paid.
• Whether the Claimant was entitled to 10 years' gratuity (15 days pay per year) under the CBA, despite the Respondent paying for only 8 years and the Claimant signing a discharge voucher.
• Whether the Respondent deducted but failed to remit National Social Security Fund contributions, as the Claimant provided no supporting evidence.
• Whether the Claimant was employed as a painter or a labourer/helper, based on the absence of a written contract and statutory presumptions under the Employment Act, 2007.
• Whether the Respondent paid the Claimant in lieu of accrued leave, as evidenced by records showing weekly leave payments.
• Whether the Claimant was owed payment for public holidays, as no evidence was produced to support this claim.
• Whether the Claimant was underpaid by Kshs 25/day in 2009 and Kshs 53/day in 2010, as per the Collective Bargaining Agreement's minimum wage provisions for painters.

Holdings

• The Claimant's claim for unremitted National Social Security Fund contributions was dismissed due to lack of supporting evidence and the court's recommendation to pursue the Fund directly.
• The Court ruled the Claimant is entitled to an additional month's wages in lieu of notice, as the Respondent had only paid one month despite the Claimant's 3+ years of service.
• The Court determined that the Claimant was a painter and not a labourer/helper due to the Respondent's failure to produce a written contract under section 10(7) of the Employment Act, 2007.
• The Court found the Claimant was underpaid by Kshs 25/- per day in 2009 and Kshs 53/- per day in 2010, as the daily rate of Kshs 370/- was below the Collective Bargaining Agreement's minimum rates for painters.
• The Claimant's accrued leave claim was dismissed, as the Respondent provided records showing he was paid in lieu of leave.
• The unpaid public holidays claim was dismissed for lack of evidence.
• The gratuity claim for 10 years was partially dismissed; the Claimant was paid gratuity for 8 years and signed a discharge voucher, so no further entitlement was awarded.

Remedies

• The Court found the Claimant entitled to an additional month's wages in lieu of notice under clause 18(iii) of the Collective Bargaining Agreement. The Respondent had already admitted paying one month, but the Claimant was awarded a second month as required by the agreement.
• The Court directed the Respondent to compute the underpayments incurred by the Claimant and file the computations in Court for adoption as an award. This remedy includes a further one month wages in lieu of notice, in addition to the one month already admitted by the Respondent.

Legal Principles

• The court emphasized statutory compliance with the Employment Act 2007, particularly the requirement for written contracts and the calculation of gratuity and notice pay.
• The court applied the principle that collective bargaining agreements are binding on parties, directing the Respondent to comply with the terms of the CBA regarding wages and notice periods.

Cited Statute

• Employment Act, 2007
• National Social Security Fund Act
• Labour Relations Act

Judge Name

Passage Text

• 21. It is not disputed that the Claimant was being paid at the rate of Kshs 370/- per day. He was being underpaid by Kshs 25/- per day for 2009 and Kshs 53/- per day in 2010.
• 18. Because of the failure and pursuant to section 10(7) of the Employment Act, 2007, the Court finds that the Claimant was a painter and not labourer/helper.
• 25. The Claimant sought Kshs 96,300/- on account of gratuity for 10 years. Pursuant to clause 18(iv) of the Collective Bargaining Agreement, the Claimant is entitled to gratuity calculated at the rate of 15 days pay for each year off service.