Kenya Union Of Commercial, Food And Allied Workers v Ukwala Supermarket Limited [2014] eKLR

Key Facts

Issues

• The claimant argued the respondent discriminated by not paying Kshs.10,000 token gratuity to the first 30 redundant employees, while the court found the second group of 68 received it. The respondent denied targeting union members, and the court concluded no discrimination occurred in the initial selection process.
• The court evaluated whether the termination of the claimant's members by the respondent on account of redundancy was fair under the relevant provisions of the Employment Act, 2007, including compliance with notice requirements and selection criteria.
• The claimant alleged the respondent underpaid wages and failed to compensate for minimum wage-related dues. The court assessed whether these claims were substantiated, particularly noting the absence of documented grievances during employment.

Holdings

• The claimant has not established that the respondent failed to comply with the selection criteria for redundancy as prescribed in section 40(1)(c) of the Act.
• The court finds the claimant has failed to establish the alleged underpayment for terminated employees, as no grievances about underpayment were shown during their employment.
• The court holds that the notice of redundancy was sufficiently addressed to the union through the branch secretary at Eldoret, satisfying section 40(1)(a) of the Act despite no collective agreement.
• The court finds that the members of the claimant have been paid off the due leave in cash, one month's pay in lieu of notice, and severance pay as provided for in section 40 of the Employment Act, 2007.
• The court finds the first 30 employees declared redundant on 30.07.2012 were discriminated against in the redundancy process and are entitled to Kshs.10,000.00 each as token gratuity.
• The court finds that as there was no recognition and collective agreement between the parties, the application of section 40(1)(d) of the Employment Act could not accrue in the redundancy in issue.

Remedies

• The respondent is required to pay half of the claimant's costs associated with the legal suit.
• The respondent must pay Kshs.10,000 to each of the 30 employees declared redundant on 30.07.2012, totaling Kshs.300,000, by 1.09.2013. If not paid by the deadline, interest will be charged at court rates from the redundancy date of 30.07.2012 until full payment is made.

Monetary Damages

Legal Principles

• The court applied Section 40(1)(a) of the Employment Act 2007, which mandates employers to notify trade unions and area Labour officers of redundancy plans at least one month prior to termination. It found that the respondent's notice to the union branch secretary and Labour officer satisfied this requirement despite the absence of a collective agreement.
• The court relied on Section 5(2) of the Employment Act 2007, which requires employers to promote equal opportunity and eliminate discrimination in employment practices. This led to the finding that the first 30 redundant employees were discriminated against when they received no token gratuity compared to the 68 employees terminated later under the same redundancy scheme.

Cited Statute

Judge Name

Passage Text

• It is not disputed that the 1st lot of 30 employees who were declared redundant on 30.07.2012 were each not paid Kshs.10,000.00 being token gratuity...the court finds that in view of that varying payment, the 1st lot was discriminated and the 30 employees are entitled each to the Kshs.10,000.00.
• The court finds that the members of the claimant have been paid off the due leave in cash, one month's pay in lieu of notice, and severance pay as provided for in section 40 of the Employment Act, 2007.
• The claimant has not established that the respondent failed to comply with the selection criteria for redundancy as prescribed in section 40(1) (c) namely seniority in time and the skill, ability and reliability of each employee affected by the redundancy.