[2019] KEELRC 1553 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO. 660 OF 2015

ANTONY MUSYOKA MUSEMBI.................................CLAIMANT

VERSUS

NAIROBI IRONMONGERS LIMITED...................RESPONDENT

(Before Hon. Lady Justice Maureen Onyango)

JUDGMENT

The Claimant filed suit against the Respondent seeking damages for unlawful termination and for payment of terminal dues. He contends that he was employed by the respondent on 25th January 2007 as a grader at a monthly salary of 12,600/=. He states that he worked diligently without any incident over the years until 15th August, 2014 when one of his co-workers named Chege was arrested by the security guards at the gates for having stolen a hydrant brush.

That on 16th August, 2014, the Respondent called in the police to interrogate workers in regard to the said theft but none of the workers knew anything about the theft. That on 19th August, 2014, the Respondent’s Director, one Jakesh Patel, chased him away and informed him that his employment had been terminated. That he left without being paid his dues being accrued leave days for 7 years, notice pay, salary for days worked in August 2014 and severance pay.

The Respondent on the other hand avers that it terminated the claimant’s employment after he was involved in the offence of theft of Company property together with Chris Mwisuka and Phillip Chege whose cases are still pending before the Makadara Law Courts. That the Claimant unlawfully deserted duty after the incident having been mentioned adversely by one Phillip Chege and thus stayed away for 5 days for fear of arrest for the offence committed. That upon return the Claimant claimed that he had travelled upcountry and was frustrated as he could not get transport back to Nairobi. It then terminated the Claimant on grounds of misconduct, dishonesty and absconding duty.

The Respondent claims that all the Claimant’s dues were paid at the Labour Office where the Claimant discharged the Respondent from further liability. The Respondent denies that the Claimant is entitled to further leave days or payment in lieu thereof. The Claim for severance pay and notice pay is also denied as it was paid and in any event the claimant signed a discharge in favour of the Respondent at the Labour office. The Respondent urges the Court to dismiss the suit with costs.

Submissions

It is submitted on behalf of the Claimant that Section 46 provides that any employer exercising the right to terminate an employee must give the reasons for such termination. Further that Section 43 provides that an employer shall be required to prove the reasons for the termination of contract and where the employer fails to do so, the termination shall be deemed unfair within the meaning of section 45.

That in the instant case no reasons for termination were advanced by the Respondent and thus the termination was unlawful. In addition to being terminated for no reason, it is submitted that the procedure under section 41 of the Employment Act was not followed and as such the Claim should be allowed as set out in the Memorandum of Claim.

The Respondent submits that the Claimant was summarily dismissed under Section 44(4)(g) after he was involved in misconduct and to allow the Claim would be to reward an employee for engaging in criminal activity.

Issues for Determination

Whether the Claimant was unfairly and unlawfully terminated

Whether the Claimant is entitled to the remedies sought.

Whether there was a valid reason for termination

Section 43 of the employment act is to the effect that:

43. Proof of reason for termination

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.

The Claimant in his evidence stated that he reported to work on 19th August, 2014, and was chased away by the Director without being given a reason for termination. The Respondent’s that the Claimant abandoned duty for 5 days for fear of being arrested and upon return he was summarily dismissed. No evidence has been attached to prove that indeed the Claimant did not report to work prior to termination, and neither did the Respondent provide any evidence in support of the allegation that they undertook any disciplinary processes prior to dismissing the clamant. A termination letter has also not been provided without which the Court is inclined to find that the Claimant was not provided with a reason for termination.

In the case ofMary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] eKLR stated that:

“Section 41 of the Employment Act is couched in mandatory terms.

Where an employer fails to follow these mandatory provisions, whatever outcome of the process is bound to be unfair as the affected employee has not been accorded a hearing … The situation is dire where such an employee is terminated after such a flawed process without a hearing as such termination is ultimately unfair. The employee must be informed through a notice as to the charges and given a chance to submit a defence followed by a hearing in due cognisance of the fair hearing principles as well as natural justice tenets.”

In light of the foregoing the Court finds that the termination of the claimant’s employment was unfair.

Whether the Claimant is entitled to the remedies sought

Notice pay

Having found that the Claimant was summarily dismissed unfairly, the Claimant is entitled to payment in lieu of notice equivalent to 1 month’s salary.

Unpaid salary

The Respondent did not present any evidence to prove that the Claimant was paid for days worked in August, 2014. Salary for the 19 days which the Claimant pleaded he worked in August, 2014, is therefore due.

Leave pay

The Claimant alleges that he worked for 7 years and had not taken any leave in the said period. No evidence to the contrary was provided. The Claimant is therefore entitled to leave as contained in the Memorandum of Claim

Damages for unlawful termination

Having found that the Claimant was unfairly terminated, he is entitled to compensation. Having worked for the respondent for seven years and taking into account the manner in which he was dismissed without notice and without payment of terminal dues and further taking into account the length of service, I award the claimant compensation equivalent to 8 months’ salary.

In conclusion, the summary dismissal of the claimant is declared unfair and judgment entered in favour of the claimant against the respondent as follows –

1. Pay in lieu of notice..........................Kshs.12,600

2. Unpaid salary for August 2014. .........Kshs.9,208

3. Pay in lieu of annual leave................Kshs.61,740

4. Compensation..................................Kshs.100,800

Total Kshs.184,348

The respondent shall pay claimant’s costs.

Interest shall accrue on decretal sum at court rates from date of judgment.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 24TH DAY OF MAY 2019

MAUREEN ONYANGO

JUDGE