[2016] KEELRC 349 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT KISUMU

CAUSE NO. 56 OF 2016

(Before Hon. Lady Justice Maureen Onyango)

AENERIKO SIMON WEKESA .................................................. CLAIMANT

-VERSUS-

THE COUNTY GOVERNMENT OF BUNGOMA ................ RESPONDENT

J U D G E M E N T

The Claim herein was filed by AENERIKO SIMON WEKESA alleging that his employment with the Respondent was unfairly terminated and/or he was unprocedurally declared redundant on 2nd February, 2015. He prays for the following remedies:-

1. Reinstatement

2. One Month's Salary in lieu of notice Shs. 18,000

3. Salary Arrears 2014 - 2015 Shs.134,000

4. Pay in Lieu of Annual Leave 2008 - 2014 Shs.101,769. 20

5. House Allowance Arrears Shs.232,200

6. Compensation 12 months' Salary Shs.248,400

7. Gratuity 7 years Shs. 72,692. 34

TOTAL Shs.907,761. 54

In his evidence in court the Claimant testified that he was employed as a tax collector at Kamukuywa market at a salary of Shs.18,000 per month. He was never issued with a payslip or letter of appointment. He signed for attendance and payment of salary in a register. He did not pay NSSF or NHIF. He worked extra hours which was not paid for. He also never took leave. He was terminated abruptly without notice by a letter addressed to his in charge dated 2nd February, 2015. He prayed for payment as claimed.

Under Cross Examination by Mr. Olonyi appearing for the Respondent, the Claimant stated that he had in his possession a yellow dust coat and photos taken while at work as evidence of his employment which he produced and showed to counsel. He stated that the name of his immediate supervisor was Leonard Nyongesa and he was employed by the County Council of Bungoma. He worked with others namely Fred Murungati, Solomon Nyaongesa, Wafula Joseph, Murungwani and Bernard Bunuka. After they were all terminated his colleagues were called and given letters of appointment without applying for the jobs but he was not called or reinstated on grounds that he was not borne in the county.

The Respondent filed a Notice of Appointment and a Response to the Claim. On the hearing date on 21st June, 2016 Mr. Olonyi instructed by A. W. Kituyi & Co. Advocates appeared for the Respondent and cross examined the Claimant. The Respondent later on 12th July, 2016 filed a list of documents being copies of work attendance register. The Respondent also filed its Defence and written submissions on 12th July 2016. The Respondent however did not call any witness.

In the Response to the Claim the Respondent states that it came into existence upon promulgation of the 2010 Constitution and took over most of the functions and staff of the now defunct County Council of Bungoma, that some of the staff taken over from its predecessor were permanent while others were casual, that the claimant may have been formerly engaged by the Respondents predecessor as a casual and continued working in the same capacity for the Respondent after the General Election of 2013.

The Respondent further avers that upon establishment it needed to regularise its functions and during the period of restructuring and reorganisation, it emerged that there were many ghost workers on the payroll some of whom had not been paid their dues over a long period of time. That in the course of regularising its workforce, the Respondent through the Finance and Economic Planning Department issued memos to its relevant officers to address issues of casual employees who had not been paid including revenue collectors across the County. The letter dated 2nd February, 2015 titled ''UNPAID CASUAL REVENUE COLLECTORS'' produced by the Claimant is one such memo.

The Respondent avers that the Claimant was neither expressly nor impliedly terminated. The Respondent further avers without prejudice, that the Claimant was a ghost worker and was never at any time employed by the County Government of Bungoma. The Respondent denied owing the Claimant the amount claimed and prays that the Claim be dismissed with costs.

The copies of Work Attendance Register filed in the Respondent's List of Documents cover the period September 2013 to March 2016. The same does not have any title indicating who made or kept it or for what purpose. Specifically the records do not reflect that they are for Kamukuywa market where the Claimant alleges he worked.

It is also important to note that the Claimant's evidence was taken on 21st June, 2016 but the Respondent's list of documents, written submissions and Response to Claim were all filed on 12th July, 2016 after the Claimant closed his case while the Respondents counsel's Notice of Appointment was filed on 8th March, 2016.

Findings and Determination

Section 41 and 43 of the Employment Act provide for the manner in which employment may be terminated. Where the termination arises out of redundancy, the law governing the procedure is contained in section 40 of the Employment Act.

In the present case the Respondent did not file any response to the claim until after the Claimant had testified and closed his case.

Section 10 of the Employment Act provides at subsection (6) and (7) as follows:-

(6) The employer shall keep the written particulars prescribed in subsection (1) for a period of five years after the termination of employment.

(7) If in any legal proceedings an employer fails to produce a written contract or the written particulars prescribed in subsection (1) the burden of proving or disproving an alleged term of employment stipulated in the contract shall be on the employer.

The Respondent admitted in the Defence that the Claimant was one of its unpaid casual revenue collectors and that it issued the memo dated 2nd February, 2015 which was used by the Sub-County Revenue Officer-Kimilili Sub-County under which the claimant worked to discontinue the claimant's services.

The Claimant having worked continuously for several years was no longer a casual employee but a monthly paid employee by virtue of section 37 of the Employment Act. He was entitled to the benefits provided for under section 37 of the Employment Act including one paid rest day per week, public holidays and such other terms and conditions of service as he would have been entitled to under the Act had he not been a casual employee.

The Respondent having conceded that the Claimant was one of its unpaid revenue collectors who were relieved of their duties as a result of reorganisation and rationalisation of the Respondent's operations, and having failed to produce evidence to controvert the evidence adduced by the Claimant, is liable to the Claimant as follows:-

1. Pay in Lieu of Notice

The Respondent did not deny the Claimant's averments that he was paid a salary of 18,000 per month as revenue collector. Having been terminated in circumstances that amount to redundancy he is entitled to one month's salary in lieu of notice as provided in section 40(1) (f) of the Act. I award him one month's salary in lieu of notice in the sum of shs.18,000.

2. Arrears

The Respondent's letter dated 2nd February, 2015 refers to ''unpaid Casual Revenue Collectors'' which is an admission that there were unpaid revenue collectors. Among them was the Claimant. The Respondent did not submit any evidence in terms of section 10(6) and (7) of the Act to controvert the Claimant's averment that he was not paid arrears of salary for June, July and December 2013, January, February, March, April, May, June, July, November and December 2014, and January 2015 all amounting to Shs.234,000 which I hereby award him.

3. Leave

The Claimant prayed for annual leave for the years 2008 to 2014 at Shs.101,769. 20. This was not controverted by the Respondent.

My tabulation of the same however gives a figure of shs.88,200 based on 21 days leave per year for 7 years resulting in 147 days at a daily rate of (18,000/30)=600 x 147 days. I award the Claimant Shs.88,200 on account of annual leave.

4. Arrears of House Allowance

The Claimant did not explain how he arrived at the figure of Shs.232,200 claimed for house allowance. In the absence of such explanation, I am inclined to presume that his salary of Shs.18,000 was consolidated.

5. 12 Months Maximum Compensation

The termination of the Claimant's employment amounted to a redundancy, the Respondent having admitted that it arose as a result of reorganisation.

For the redundancy to have been regular the Respondent ought to have complied with the provisions of section 40 of the Employment Act which provides as follows:-

40. Termination on account of redundancy

(1) An employer shall not terminate a contract of service on account of redundancy unless the employer complies with the following conditions—

(a) where the employee is a member of a trade union, the employer notifies the union to which the employee is a member and the labour officer in charge of the area where the employee is employed of the reasons for, and the extent of, the intended redundancy not less than a month prior to the date of the intended date of termination on account of redundancy;

(b) where an employee is not a member of a trade union, the employer notifies the employee personally in writing and the labour officer;

(c) the employer has, in the selection of employees to be declared redundant had due regard to seniority in time and to the skill, ability and reliability of each employee of the particular class of employees affected by the redundancy;

(d) where there is in existence a collective agreement between an employer and a trade union setting out terminal benefits payable upon redundancy; the employer has not placed the employee at a disadvantage for being or not being a member of the trade union;

(e) the employer has where leave is due to an employee who is declared redundant, paid off the leave in cash;

(f) the employer has paid an employee declared redundant not less than one month’s notice or one month’s wages in lieu of notice; and

(g) the employer has paid to an employee declared redundant severance pay at the rate of not less than fifteen days pay for eachcompleted year of service.

Having failed to comply with the law, the Claimant's redundancy amounted to an unlawful and unfair termination. Taking into account all the relevant factors including the long casualisation of his employment and the factors set out in section 49(4) of the Employment Act it is my opinion that it is reasonable to award maximum compensation in the present case. I therefore award the claimant 12 months' salary as compensation in the sum of Shs.216,000.

6. Gratuity

The Claimant prayed for gratuity in the sum of Shs.72,692. 34. He did not adduce any evidence to prove that his terms of employment provided for gratuity or how the entitlement arises. What the claimant should have claimed is service pay under section 37 and severance pay under section 40 both of which he would have been entitled to.

The prayer for gratuity must therefore fail and I dismiss it accordingly.

In summary therefore I award the claimant the following:-

1. Pay in Lieu of Notice Shs. 18,000

2. Arrears of Salary Shs.234,000

3. Leave Shs. 88,200

4. Compensation Shs.216,000

TOTAL Shs,556,200

The decretal sum shall attract interest at court rates from date of payment.

Dated and signed and delivered this 27th day of October, 2016

MAUREEN ONYANGO

JUDGE