Kudheiha Workers v Masaku School for the Physically Disabled (Cause 2105 of 2012) [2014] KEIC 128 (KLR) (Civ) (14 January 2014) (Judgment)

Kudheiha Workers v Masaku School for the Physically Disabled (Cause 2105 of 2012) [2014] KEIC 128 (KLR) (Civ) (14 January 2014) (Judgment) Kudheiha Workers v Masaku School for the Physically Disabled [2014] eKLR Neutral citation: [2014] KEIC 128 (KLR) Republic of Kenya In the Industrial Court at Nairobi Civil Cause 2105 of 2012 Nzioki wa Makau, J January 14, 2014 Between KUDHEIHA Workers Claimant and Masaku School For The Physically Disabled Respondent Judgment 1.The Claimant herein commenced the suit against the Respondent onbehalf of its member Wilson Sila Munguti. Mr. Munguti it was averredwas an employee of the Respondent from 2000 until his termination on15th October 2010 verbally. At the time the Claimant was earning Kshs.6,262/- a month inclusive of house allowance. The Claimant averredthat he was underpaid below the statutory minimum. He also claimedhis gratuity, prorate leave, days worked and notice. The Claimant thussought payment of the salary difference due for the years making agrand total of Kshs. 393,752/-. The Claimant sought intervention of theMinistry of Labour but the Respondent did not honour any of themeetings set by the Conciliator precipitating the suit. 2.The Respondent did not appear and did not defend the suit in spite ofservice of summons and hearing notices. 3.The Claimant testified before me on 30th October 2013 thus:- he wasemployed as an assistant cook. He would report at 4.45am and cookfor the students breakfast and then lunch before leaving after supperin the evening. On 15th October 2010, he was a work as usual at 4.45am and at 6.00am he saw his colleague Patrick Maithya Ndungwaat work yet he was on off duty. When Sila asked why his colleague wasat work when he was due to be off, his colleague told him that he hadbeen called at 9.00pm the previous night and advised to report towork. At about 6.15am the boss came and told Sila that he was free togo. When Sila asked why he was sent way he was told to go andreturn. He reported the matter to the Claimant Union and when theofficials went to the School, the Headmaster refused to talk to theUnion officials and only met Sila, the shopsteward and Ndungwa. Hetold Sila that he could continue working but Sila declined due to thereshuffle the Headmaster had effected. 4.The Claimant filed final submissions on 6th November 2013. In theSubmissions, the Claimant reiterated that Sila should be paid his duesand cited the decision of Rika J. in Cause 291 of 2010 KudheihaWorkers v. Muranga High School (unreported). 5.The Claim from the evidence adduced and documents produced wasproved on a balance of probability. The grievant Sila was terminatedwithout regard to the procedure laid out in the Employment Act 2007Section 41. It was clear the Respondent declined to participate in theconciliation process by the Ministry of Labour and even failed andrefused to participate in the case filed against it. The Claimant claimedunder payment and produced the Government Circular issued in 2008.Cooks were entitled to payment under three bands – 8,819/-, 9,257/and 9,721/-. I would place the grievant Sila at the band of Kshs. 8,819/-per month. The computations on underpayment were erroneouscompelling the Court to recompute using 8,819/- instead of 8,519/-. Inother parts there were inaccuracies in the actual mathematics.Page 2 of 3 6.He therefore is entitled to the following:-a.1 month salary in lieu of notice – Kshs. 8,819/-b.Service gratuity for 10 years (15 days for each year) – Kshs.48,504.50c.15 days worked in October 2010 – Kshs. 4,409.50d.prorate leave for 5 months - – Kshs. 4,409.50e.Underpayments totaling Kshs. 187,942/-f.3 months compensation for wrongful dismissal Kshs. 26,457/-Total – Kshs. 289,360.50 7.He will also have interest on the above sum at 12% per annum fromdate of filing suit till payment in full plus the costs of the suit.It is so ordered. **DATED AND DELIVERED AT NAIROBI THIS 14 TH DAY OF JANUARY 2014****NZIOKI WA MAKAU****JUDGE**