Seven employees of a private members club who were sent on leave without pay because of the Covid-19 pandemic have been asked to negotiated with their employer for a solution.
Labour and Employment Court Judge Stephen Radido (pictured) declined to grant the employees’ request that Signature Holdings (Capital Club) be forced to pay them their full salaries.
Moses Kamau, Nawire Wejuli, Shem Luchiri, Purity Gitonga, Wilfred Mugira, Paul Mukonza and Wison Momanyi had also asked the court to bar their employer from varying their terms of contract until the case was determined. Justice Radido’s ruling signals the delicate balance the courts have to maintain in resolving employment disputes arising from the health crisis.
As more coronavirus-related labour disputes spill into the courts, it appears that judges have been forced to take into consideration the dire situation facing employers as well as the plight of desperate employees.
Signature Holdings – popularly known as Capital Club – is a private members club and was among the establishments shut by the government to curb spread of the coronavirus disease.
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Thousands of employers responded by cutting salaries or sending staff on unpaid leave, leading to legal disputes. Justice Radido noted that the pandemic had put employers in an impossible situation, where they were doomed whether they acted or did nothing.
The judge found that if the club was forced to rescind its decision, it could decide to dismiss the workers, thus raising the possibility of them not finding employment for a long time.
“While the primary duty of the court is to uphold the law and find if there is a breach of contract, the current situation created by the Covid-19 pandemic makes the task of the court perilous.
“The court may order the employer to meet its obligations under the contract but the ripple effect would be that the employer may be forced to declare redundancies,” said the judge. Justice Radido declined to fault Signature despite finding that it had not provided evidence of consulting the employees before sending them home.
Instead, he urged the parties to sit and talk in good faith, noting that the court could issue orders at the tail end of the case if it finds that the law had been breached.
Breach of contract
“Considering the above, and the fact that the claimants are still employees of the respondent, and further that there are remedies for breach of contract apart from an order for part or specific performance, and further considering that the orders sought may lead to redundancies, a far more perilous action, the court is of the view that it would not be prudent to give any of the orders sought in the motion.”
On March 31, the club notified its employees that due to the pandemic, it was suspending all contractual benefits, save for health cover, and sent them on unpaid leave for an indefinite period of time.
The aggrieved employees moved to court where they argued that there had been no consultations before they were sent home.
Although Signature disputed the claim, Justice Radido found that the club did not produce in court any notes or minutes of such consultations.
“The court can, therefore, conclude that there was a failure to comply with the law,” he said.