[2019] KEELRC 1208 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 621 OF 2015

ALEXANDER NYOIKE CLAIMANT

V

THIKA COFFEE MILLS LIMITED RESPONDENT

JUDGMENT

1. On 25 March 2013, Alexander Nyoike (Claimant) sent a Memoto the Managing Director of Thika Coffee Mills Ltd (Respondent) seeking approval for the disposal of certain stores.

2. The Claimant, a general clerk was suspended from work for 2 weeks through a letter dated 3 July 2013, and the reasons set out in the letter included disregard of stores policies and abandoning of the stores occasioning removal of batteries from the stores.

3. When the 2 weeks suspension lapsed, the Claimant reported to work but was sent back home necessitating him writing an email on 22 July 2013 seeking to know the status of his employment.

4. On 4 March 2014, the Respondent issued a notice of termination of employment to the Claimant, and this aggrieved the Claimant who instituted legal proceedings on 17 April 2015 wherein the Issue(s) in Dispute were stated as

i. Unlawful termination of employment by the Respondent and

ii. failure to pay terminal dues and/or benefits to the Claimant.

5. The Respondent filed a Statement of Defence on 24 July 2017 and the Cause was heard on 4 April 2019.

6. The Claimant and the Respondent’s Account Assistant and Administrator testified (they adopted their witness statements).

7. The Claimant’s submissions were not on file by this morning while the Respondent filed its submissions on 2 July 2019.

8. The Court has considered the pleadings, evidence and submissions on record.

9. The Court has adopted the Issues as proposed and filed by the Claimant on 16 January 2018.

Unlawful termination of employment

Procedural fairness

10. Section 35(1)(c) of the Employment Act, 2007 contemplates the giving of written notice of termination of employment.

11. In terms of section 41 of the Act, an employer is under an obligation to notify the employee of the reasons for contemplated termination of employment as well as afford him an opportunity to make representations.

12. Around 27 June 2013, the security guards employed by the Respondent had found a driver leaving with stores without appropriate documents/delivery notes. The stores included 2 batteries.

13. The Claimant was asked to and made a written explanation on 28 June 2013, and on 3 July 2013 he was suspended for 2 weeks.

14. As already stated when the 2 weeks lapsed, the Claimant sought to know the status of his employment through an email, and on 23 July 2013, the Respondent’s Managing Director requested him to appear for a disciplinary hearing that afternoon.

15. According to records produced in Court, the hearing proceeded and a guilty recommendation was entered.

16. The Claimant was then issued with a written notice of termination of employment dated 4 March 2014. The letter did not set out any reasons for the notice.

17. In spite of the long interlude, the Court finds a nexus between the suspension and hearing in 2013, and the notice of 4 March 2014.

18. In the view of the Court, the Respondent was in substantial compliance with the peremptory requirements of sections 35(1)(c) and 41 of the Employment Act, 2007.

Substantive fairness

19. Sections 43 and 45 of the Employment Act, 2007 bestow on an employer the burden of proving the reasons for bringing an employment contract to an end, and that the reasons were valid and fair.

20. The Claimant, a clerk was serving as a storeman.

21. The testimony of the Respondent’s witnesses that stores (batteries) were intercepted by guards at the gate without delivery notes and that it was the duty of the Claimant to issue appropriate delivery notes before releasing goods was not interrogated in any meaningful way.

22. The Court can therefore conclude that the Respondent had and did prove valid and fair reasons to terminate the Claimant’s contract.

Breach of contract/statute

Salary from 1 September 2013 to 30 September 2014

23. The Claimant sought salaries from 1 September 2013 to 30 September 2014.

24. The Respondent notified the Claimant of the termination of contract through a letter dated 4 March 2014. The effective date of separation was stated as 2 April 2014.

25. The Court can therefore find no justifiable reason for the Claimant to get wages beyond 2 April 2014.

26. The Respondent did not lead any evidence as to the contractual or legal foundation for not paying the Claimant salaries up to effective date of separation 2 April 2014.

27. The Court is therefore of the view that the Claimant is entitled to salary for 7 months from 1 September 2013 to 2 April 2014, amounting to Kshs 88,200/-.

22 unpaid leave days

28. The Claimant sought Kshs 12,600/- on account of accrued leave days, and because leave records were not produced by the Respondent, the Court in consideration of section 10(3) & (7) of the Employment Act, 2007 will allow the head of claim.

Pay in lieu of notice

29. The Claimant was given notice and therefore pay in lieu of notice does not arise.

Compensation

30. With the conclusion that the termination of employment was fair, compensation, a discretionary remedy does not avail the Claimant.

Certificate of Service

31. A certificate of service is a statutory entitlement and the Respondent should issue one to the Claimant.

Conclusion and Orders

32. The Court finds and declares that though the termination of the Claimant’s employment was fair, the Respondent was in breach of contract/statute, and awards the Claimant

(a) Salary up to 2 April 2014 Kshs 88,200/-

(b) Unpaid leave days Kshs 12,600/-

TOTAL Kshs 100,800/-

33. Respondent to issue certificate of service within 15 days.

34. Claimant is denied costs because of not filing/serving submissions within agreed timelines.

Delivered, dated and signed in Nairobi on this 12th day of July 2019.

Radido Stephen

Judge

Appearances

For Claimant Mr. Inyangu instructed by Ameli Inyangu & Partners

For Respondent Mr. Thuo instructed by A. Thuo Kanai Advocates

Court Assistant Lindsey