Workers of African Nazarene University, who were sent on unpaid leave because of the Covid-19 pandemic, have been asked by the Labour court to negotiate with the employer for a solution in the salary cut dispute.
Justice Stephen Radido declined to grant a request by the employees’ union, Kenya Private Universities Workers Union, to restrain the university from effecting any salary reduction.
Instead, the judge directed the two sides to engage in negotiations and agree on an equilibrium that will preserve jobs and not lead to the financial ruin of the university.
The agreement should be deposited with the office of the Commissioner of Labour within 30 days, the judge ordered.
The judge took into consideration the economic challenges facing educational institutions which rely mainly on fees from students to finance their operations and pay staffers.
In his decision, the judge also considered the need to preserve jobs rather than an application of the technicality of the law which may have adverse consequences on both the employer and employees.
The union moved to court after the university issued a circular to all staff and employees informing them that due to the Covid-19 pandemic and suspension of learning, all staff would be sent on unpaid leave with effect from June 15, 2020.
The circular dated May 15 indicated that further instructions would be issued on August 31, 2020. It also advised the staff that during the leave, they would be paid the equivalent of 30 per cent of their housing allowance.
In a virtual meeting held between the union and the university on May 20, 2020, the school maintained that because of the prevailing circumstances it would not reverse its decision on leave without pay and the house allowance.
But Justice Radido ordered the learning institution to continue paying full house allowance at pre-Covid-19 rates including a refund of arrears to all unionisable employees.
“Section 31 of the Employment Act, 2007 at the first instance obligates an employer to provide at his own expense reasonable housing accommodation for each employee or in default to pay such sufficient sum to cover rent,” said justice Radido.
The court stated that the workers’ right to housing accommodation and in lieu house allowance is non-derogable (important human right that cannot be limited or suspended) while the employment lasts.
“The statutory right (of every worker to housing accommodation), in the view of the court has many characteristics which include affordability, habitability, location and accessibility because of the use of the term reasonable housing accommodation and sufficient sum as rent,” said the judge.
He ruled that since the university and the union have a recognition agreement, the university needed to consult the union before making the decision to send staff on leave without pay.
“The need for consultation and social dialogue and more so during the Covid-19 has been recognised by the International Labour Organisation. The failure to consult the Union before making the decision was in breach of the law on change of employment particulars,” said the judge.
Section 10(5) of the Employment Act, 2007 obligates an employer to consult with the employee (or with the trade union where the workers have organised) before altering or changing certain employment particulars.
Such particulars include remuneration, form and duration of contract and entitlement to annual leave.
The records on the file before the court suggested that the university held some form of consultations with the employees and not the union, despite the parties having a recognition agreement.
The judge also noted existence of a Memorandum of Understanding between the Tripartite Social Partners – the Ministry of Labour and Social Protection, Central Organisation of Trade Unions and the Federation of Kenya Employers. The MoU was signed on April 30, 2020 underscoring the need for social dialogue.