Kenya Literature Bureau staff win big in discrimination suit

Unionised workers of the Kenya Literature Bureau (KLB) have won a case against their employer after a judge agreed that they were discriminated against.

Justice Byram Ongaya ruled that an employer cannot be allowed to use tactics to defeat workers rights on remuneration and to join and participate in union affairs.

The 35 unionised employees moved to court accusing KLB of discrimination and unfair treatment compared to their counterparts who are not union members.

The employees who are members of the Kenya Union of Printing, Publishing and Allied Workers (Kupripupa) also wanted the court to compel KLB to pay them Sh16.9 million, which they said was denied salary increment for a period of 21 months.

"A declaration is issued that the respondents have infringed on the petitioners rights under Article 41 of the Constitution which provides that every employee has a right to fair labour practices and to fair remuneration and the right to form, join and participate in the activities and programmes of a trade union," the judge said.

On the issue of unpaid dues and other benefits, the Employment and Labour Relations Court asked the parties to reconcile the figures or register a compromise.

The employees had submitted that their employer had deliberately stalled negotiations on the Collective Bargaining Agreement (CBA).

“The respondent is unwilling to execute the said CBA causing delays ... all efforts to prevail upon the respondent to do so including correspondence and proceedings before the Labour Commissioner have been futile,” Mr Fredrick Koech said in an affidavit.

He said a union members who applies for emergency funds, for example, is often denied while a request from a non-unionised staff is granted promptly.

Mr Koech said in an affidavit that their employer had failed to promote unionised staff for the past five years yet the same has been done for non-union staff.

The workers accused the employer of failing or refusing to pay them their rightful and reasonable overtime dues and instead, purported to apply rates that are different and lower for unionised workers.

They said they are entitled to overtime that is payable for services rendered at the rate of 1.5 times the regular hourly pay. For every hour worked beyond the regular eight hours a day, entitles them 1.5 times of hourly wage.

Mr Koech said most union members have been compelled to accept and sign an early retirement package without just cause.

KLB Managing Director Victor Lomaria accused the employees of forum shopping (when a party chooses a court or jurisdiction with the most favourable laws or rules for their case, even if it’s not the most relevant forum) because they had raised similar prayers in a case pending in court. He dismissed claims that the employer was the one stalling the CBA.

Mr Lomaria said KLB had allowed the employees to participate in union activities and the negotiations stalled after the workers moved to court.

The judge noted that KLB had admitted to paying unionisable employees differently from other workers. KLB has vowed to appeal the decision.