[2018] KEELRC 2380 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT ATNAIROBI

CAUSE NO. 1332 OF 2013

(Before Hon. Lady Justice Hellen S. Wasilwa on 16th February 2018)

ABDUL RAHIM …………………...……CLAIMANT

VERSUS

HALL EQUATORIAL LIMITED ……. RESPONDENT

JUDGMENT

1. The Claimant herein filed his Memorandum of Claim on 20th August 2013 and later an Amended Claim on 13th November 2014 through the firm of Ochieng, Onyango, Kibet and Ohaga Advocates claiming wrongful dismissal by the Respondents.

2. It is the Claimant’s case that he was employed by the Respondent in 1989 when the Respondents took over the operations and employees of APV Hall Equatorial Limited.

3. The Claimant produced his employment contract (Appendix 1) which shows he was employed on 2nd July 1968 by Hall Thermotank Equatorial Limited and later on 1st August 1989 by APV Hall Equatorial Limited as Sales Engineering Manager. He was later appointed as Director of Hall Equatorial Limited on 26th February 2005. He states that he was the Director responsible for designing and installation of air conditioning and mechanical ventilation systems.

4. He avers that he was responsible for supervising of various sites and day to day running of the office affairs. His salary at time of termination of his employment was Kshs.265,000/= as per Appendix 2 his December 2012 payslip.

5. It is Claimant’s position that he served the Respondents diligently but that on 20th October 2012 he fell sick and travelled to India for treatment where he stayed until April 2013. He avers that he was away with the knowledge and consent of the Respondent including its Director a Mr. S. Vivaraj. He produced evidence of the medical condition and treatment as Appendix 3.

6. The Claimant avers that at all times the Respondent was aware of his illness and absence from office and continued to pay his salary during his absence. The Claimant avers that he returned to work in May 2013.

7. The Claimant avers that while in India on treatment, he was in constant touch with the Respondent who was aware and updated of his treatment. That he was also consulted on several official matters through phone calls and he provided the necessary feedback even while away on sick leave.

8. The Claimant avers that on 13th May 2013 he was informed by Mr. Akbar Kurii that his employment with the Respondent was terminated effective immediately.

9. He avers that he was not given an opportunity to make any representation or defend himself prior to or after the termination. The Claimant contends that the Respondent treated him unfairly and illegally and failed to comply with the law – Section 41 of Employment Act and Section 46 of Employment Act and the Constitution.

10. He contends that there were no proper reasons to terminate his employment. His claim against the Respondent is for a declaration that the termination was unlawful and unfair and also payment of damages for the unlawful termination plus other prayers in his claim.

11. The Respondent filed their Memorandum of Defence on 11th July 2014 through Federation of Kenya Employers.

12. The Respondent admit that the Claimant was their former employee. They aver that the Claimant worked for them until 29th December 2012 when he absconded duty only to show up at their premises in May 2013 without offering any explanation as to his whereabouts.

13. The Respondent deny that they were informed and neither were they aware of the Claimant’s absence on medical grounds. They deny that the Claimant was in constant communication with them while away.

14. In relations to the Claimant’s assertion that he was terminated on 13th May 2013, they aver that they had a meeting with Claimant and informed him that if he was unwell he was to take enough rest and they deny terminating him as alleged.

15. They deny that Claimant had been terminated and as such there was no need for any hearing. They also deny treating the Claimant in any discriminatory manner. They deny terminating the Claimant from employment but state that the Claimant absconded from work. The Respondents deny that the Claimant is entitled to reliefs sought.

16. The Claimant gave a sworn statement and when cross-examined he stated that he was terminated on 13th May 2013. On removal as Director, he stated that he has not signed any documents removing him as a Director of the Company. He referred to minutes of August 2012 and 29th September 2012 where it was indicated that he was absent with apology. He denies he was given a termination letter.

17. He avers that he came to work from time to time when he was sick and even signed cheques and documents. He stated that he was not paid salary for January, February, March and May 2013. He denies he was paid in January 2013 as per Appendix 2 of Respondent’s documents.

18. He says he has 17 days leave due from January to May 2013 and he also seeks 23 years service. He admitted he was paying NSSF but had no pension scheme. He avers that the Chairman gave him 5 minutes to get away.

19. The Claimant pointed out that paragraph 6 of the defence states that he disappeared on 29th December 2012 and paragraph 14(a) that he absconded duty in August 2012.

20. The parties field their respective submissions. I have considered the respective submissions and set the following as the issues for determination:-

1. Whether the Claimant was unlawful and unfairly terminated for employment.

2. Whether that Claimant was discriminated upon as alleged.

3. Whether the Claimant is entitled to reliefs sought.

21. On the 1st issue, the Respondent have denied ever terminating the services of the Claimant. They however aver that he either disappeared or absconded. This can be determined from their paragraph 6 and 14(e) of their defence where they aver that the Claimant on one hand absconded from duty on 29th December 2012 and in August 2012 because Appendix 1 produced by Respondents is a leave form dated 11th July 2012 stating that the leave is from 19th July 2012 to 29th August 2012.

22. The Respondents also annexed the Claimant’s pay slips for September, October, November and December 2012, which shows that he was paid and therefore the fact of absconding in August 2012 is not true. Other documents attached by Respondent show the fact of payments of Claimant’s salary during this period.

23. The Claimant was appointed the Respondent’s Director on 28th February 2005 as per his page 11 and 12 of his documents. Other than this, page 16 of the email from Aboulali Kurji indicates that the Claimant Rahim will be:-

“…Responsible to manage the daily affairs of the Company as well as the technical and marketing functions”.

24. The substantive post held by Claimant was therefore that of managing the company’s daily affairs and technical and marketing functions. He was paid accordingly and the payslips attached (Appendix 2) are proof of this. He remains Director of the Respondent todate.

25. There is no written proof that he was dismissed or terminated from the technical and marketing functions. The fact of the stoppage of his salary is however proof of a termination. The Respondents despite denying terminating him have not explained why they stopped paying his salary.

26. The Claimant explained his absence and produced his medical records to show he was unwell after being diagnosed with cancer in 2012. He proceeded to India for treatment and the records and report is available.

27. The Respondents kept paying the Claimant’s salary during the period of treatment in India and they cannot state that he absconded duty. The discharge notes show that he was discharged from hospital on 2nd January 2013 after undergoing treatment and he was to have follow up treatment. The Claimant returned to work in May 2013 as evidenced from page 55, 56 and 57 of his documents.

28. From the foregoing, it is my finding that the Respondent indeed terminated the Claimant’s services and the manner of termination was unfair and unjustified. The provisions of Section 41 of employment Act were not followed. Section 41 of the Employment Act 2007 states as follows:-

“(1). Subject to section 42 (1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.

(2). Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44 (3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1) make”.

29. Since there is no written letter terminating the employment, the reasons for the termination cannot be ascertained. Section 43 of the Employment Act 2007 states as follows:-

1. “In any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45.

2. The reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee”.

30. This Court finds that the Claimant was not accorded due process and neither were there valid reasons to terminate him. The termination was therefore unfair and unjustified as provided under Section 45(2) of employment Act which states as follows:-

2. A termination of employment by an employer is unfair if the employer fails to prove:

a. that the reason for the termination is valid;

b. that the reason for the termination is a fair reason:-

i. related to the employee’s conduct, capacity or compatibility; or

ii. based on the operational requirements of the employer; and

c. that the employment was terminated in accordance with fair procedure.

31. On issue of discrimination, the Claimant has not explained what discriminatory treatment was directed at him as opposed to the other employees. The claim of discrimination is therefore not proved.

32. Given the finding of unfair termination, I find for the Claimant and I award him the following prayers:-

1. 1 months salary in lieu of notice = 265,000/=.

2. 12 months salary as damages for unfair termination = 265,000 x 12 = 3,180,000/=.

3. Salaries unpaid for 4 months – January, February, march and May 2013 = 1,060,000/=

4. Unpaid leave of 17 days = 124,955/=

Total = 4,629,955=

5. Issuance of a Certificate of Service.

6. The Claimant as a member of NSSF and so payment of service pay is not tenable as envisaged under Section 35 (d) of employment Act.

7. The amounts awarded are subject to statutory directions.

8. The Respondent will pay costs of this suit plus interest at Court rates with effect from date of this judgement.

Dated and delivered in open Court this 16th day of February, 2018.

HON. LADY JUSTICE HELLEN WASILWA

JUDGE

In the presence of:

Onyancha holding brief Oduor for Claimant – Present

No appearance for Respondent