[2016] KEELRC 1644 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU

CAUSE NO.253 OF 2014

ALEX OLUCHILI MILOKO CLAIMANT

v

NAKUMATT HOLDINGS LIMITED RESPONDENT

JUDGMENT

Alex Oluchili Miloko (Claimant) was employed by Nakumatt Holdings Ltd (Respondent) on 28 March 1995 as a shop Assistant. He rose to position of Deputy Branch Manager.

On 27 June 2014, the Claimant commenced legal proceedings against the Respondent alleging unprocedural, wrongful and unlawful dismissal, and he quantified his total claim as Kshs 11,176,681/-.

The Respondent was served and it raised a preliminary objection contending that the cause of action was statute barred, but the Court declined to uphold the objection.

The Respondent consequently filed a Response on 4 December 2014, and on 5 December 2014, the Cause was fixed for hearing on 3 November 2015.

The hearing date was fixed in the presence of Mr. Wahome holding brief for Mr. Kirwa for the Claimant while Mr. Aim held brief for Mr. Nyaberi for the Respondent.

When the Cause was called out for hearing on 3 November 2015, there was no representation for the Respondent, and the Court allowed the hearing to proceed as the date had been taken in the presence of the Respondent’s legal representative.

The Court has considered the pleadings, evidence and submissions and identified the issues for determination as, whether cause of action is statute barred,whether the dismissal of the Claimant was unfair and appropriate remedies/orders including contractual/statutory entitlements sought by the Claimant such as overtime and leave.

The Court notes that the Claimant attempted to sneak in evidence of his wages from 1995 to 2006 through the submissions in what he called Affidavit in Support of the Claimant’s Claim.

The said evidence is rejected.

Whether cause of action is statute barred

Although the Court rejected the preliminary objection on limitation, a few words are merited.

The evidence on record is that the Claimant became aware of his dismissal on 31 January 2013, when the Respondent advised his advocate after they sought to know his employment status.

The request to know the status could not have been made if the Claimant was aware that he had been dismissed in March 2010, and therefore this cause of action is not caught up by section 90 of the Employment Act, 2007.

The Court takes comfort in reaching that conclusion after considering the jurisprudence from comparative jurisdictions, and which general legal principles the Court endorses as being applicable even in our jurisdiction.

In McMaster v Manchester Airport plc (1998) IRLR 112 EAT, the Employment Appeal Tribunal, England was of the view that the effective date of termination of a contract of employment could not be earlier than the date on which an employee received the knowledge that he had been dismissed with reference to the circumstances of the case.

In Hindle Gears Ltd v McGinty & Ors (1984), IRLR 477, the Court of Appeal, England held that an uncommunicated decision to dismiss an employee was not sufficient to effect a dismissal. Of course there would be exceptions.

Whether dismissal was unfair

Procedural fairness

Section 41 of the Employment Act, 2007 provides for due process before an employee’s services is terminated on the grounds of misconduct, poor performance and or physical incapacity.

In paragraph 14 of the Response, it was contended that the Claimant was dismissed from employment because he fundamentally breached his contract of service through fraud and gross misconduct.

A hearing was therefore mandatory. The question therefore is whether a hearing as contemplated by section 41 of the Employment Act, 2007 was held.

The Claimant challenged the process of dismissal during testimony, and stated that he was not given notice.

He called the Branch Secretary of the Kenya Union of Commercial, Food & Allied Workers who testified that the union was not called to a hearing prior to dismissal.

In his testimony, the Claimant stated that he got information of his dismissal on 31 January 2013, through his advocates, L.M. Ombete.

The Respondent had in a letter of that date and in response to the advocate’s letter advised the advocate that the Claimant had been dismissed with effect from 1 March 2010, and that the dismissal letter had been posted to the Claimant.

The Claimant stated that on 16 February 2010, he had been called to the Respondent’s head office in Nairobi and he was questioned by the Operations Manager about a cheque and purchases made by Baraton University.

The Operations Manager then referred him to the Personnel Manager who told him the issue was under investigations and he went home but got no feedback, and therefore on 26 June 2010 he went back and was told he would be redeployed.

The Claimant denied that the address used to post the dismissal letter, P.O. Box 79 was used by him. He stated his address was P.O. Box 8337 Eldoret.

The Respondent dealt with the process followed prior to dismissal in paragraphs 6, 7 and 17 of the Response.

Without any explanations to substantiate the pleadings, the Court is not able to determine whether what happened was an inquiry/investigative process to unearth the facts upon which to charge the Claimant, or a hearing as contemplated by section 41 of the Employment Act, 2007.

The Court can therefore only conclude that the Respondent did not comply with the peremptory requirements of section 41 of the Employment Act, 2007, and therefore the dismissal was procedurally unfair.

Overtime

The Claimant stated that he used to work from 6. 00am to about 10. 00pm (16 hours every day).

The Claimant was in management and by practice in this country, managers do not earn overtime but get compensated in other ways such as through responsibility allowance.

With the material placed before Court, the Court declines to find that the Claimant is entitled to overtime.

Rest days

The Claimant sought Kshs 2,376,000/- on account of rest days from March 1995 to 2010, a total of 432 days.

His evidence that he used to work 7 days a week remain unchallenged and uncontroverted.

The Respondent was put on notice about this head of claim, and pursuant to section 10 of the Employment Act, 2007 it ought to have filed attendance records.

The Court finds that the Claimant has made a case for the relief under this claim but because the quantification is dependent on the actual wages at particular times, which was not proved, this relief is declined.

Leave

The Claimant testified that from 1995 to 1999, he was not granted leave and that from 1999 to 2004 he had 45 days pending leave days.

He further stated that from 2004 to 2010, he had 55 outstanding leave days.

The Claimant quantified the cash equivalent of the leave as Kshs 510,865/-. It appears he simply multiplied his wage of Kshs 82,500/- with 7 years.

However, it is inconceivable that the Claimant earned Kshs 82,500/- all through from 1995 when he produced only 2 pay slips for January and April 2010.

The Court can use the said wage pay slips of Kshs 82,500/- to compute leave entitlement for 2010.

Service gratuity

Under this head, the Claimant sought Kshs 825,000/-.

Because the Court has reached a conclusion that the dismissal was unfair, it would deem the dismissal as normal termination and therefore by virtue of clause 16(d) of the collective bargaining agreement, the Claimant would be entitled to gratuity/severance pay in terms of contract.

Unpaid wages from March 2010 to February 2013

In practical terms, the contract ended in March 2010, but the Court has reached the conclusion that the effective date of separation was 31 January 2013 and therefore the Claimant is entitled to the wages during this period as set out in the Memorandum of Claim.

House allowance

From the time the Employment Act, 2007 came into effect on 2 June 2008, an employer was obligated to indicate whether wage was consolidated to include an element of house allowance.

The Claimant was not issued with a written contract or the particulars required by statute.

The pay slips produced show the Kshs 82,500/- was a basic wage.

The Court therefore finds that the Claimant would be entitled to 15% of the basic wage as house allowance from 2 June 2008 to 28 February 2010 (21 months).

However, because there was no proof of actual wages during the period, the relief is declined.

Compensation

The dismissal has been found to be unfair. The Claimant served the Respondent for about 15 years. Considering the length of service, the Court would award the maximum compensation.

Conclusion and Orders

The Court finds and holds that the dismissal of the Claimant was unfair and awards him and orders the Respondent to pay him

2 months pay in lieu of notice Kshs 165,000/-

Compensation Kshs 990,000/-

Accrued leave 2010 Kshs 82,500/-

Gratuity Kshs 825,000/-

Unpaid wages to January 2013 Kshs 2,887,500/-

TOTAL Kshs 4,850,000/-

Claimant to have costs.

Delivered, dated and signed in Nakuru on this 26th day of February 2016.

Radido Stephen

Judge

Appearances

For Claimant Mr. Kirwa instructed by Mwakio, Kirwa & Co. Advocates

For Respondent Nyaberi & Co. Advocates

Court Assistant Nixon