[2016] KEELRC 502 (KLR)
The court found that the claimant's employment was terminated without valid reason or due process, as the respondent failed to provide any evidence or justification for the dismissal. The claimant's evidence was uncontested due to the respondent's absence. The court determined that the claimant was paid below the...
Source-derived case information.
- Citation
- [2016] KEELRC 502 (KLR)
- Parties
- Claimant: Augustus Mbusya Ndilo; Respondent: Swedken Tours
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1782 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the claimant.
- Judges
- NJ Abuodha
- Legal Topics
- Unfair Termination, Minimum Wage, Overtime Compensation, Leave Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Augustus Mbusya Ndilo
Claimant
Swedken Tours
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was unfairly terminated from employment.
- 2 Whether the claimant was paid below the statutory minimum wage.
- 3 Whether the claimant was entitled to unpaid leave, house allowance, and overtime compensation.
Ratio Decidendi
The court found that the claimant's employment was terminated without valid reason or due process, as the respondent failed to provide any evidence or justification for the dismissal. The claimant's evidence was uncontested due to the respondent's absence. The court determined that the claimant was paid below the statutory minimum wage and was entitled to the difference for the period worked, as well as compensation for unfair termination, leave allowance, and pay in lieu of notice. The employer's failure to follow statutory requirements regarding termination and minimum wage obligations rendered the dismissal unfair and unlawful.
Court Disposition
Judgment for the claimant.
Orders
- The respondent shall pay the claimant the difference between the statutory minimum wage and the amount paid for eighteen months.
- The respondent shall pay the claimant leave allowance of Kshs. 4,740.00.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NUMBER 1782 OF 2014
AUGUSTUS MBUSYA NDILO.........................................CLAIMANT
VERSUS
SWEDKEN TOURS....................................................RESPONDENT
JUDGMENT
1. The claimant averred that he was employed by the respondent as a driver on 2nd November, 2012 drawing a basic salary of Kshs.700 per month. He claimed he was never paid house allowance. He further contended that he was paid wages below minimum prescribed by the prevailing Wages Order and further that he worked overtime and was never compensated.
2. According to the claimant, he never went on leave for the period he worked and that on 31st May, 2014 while on duty he was summoned by the respondent while on duty and stopped from working without any reason.
3. The respondent entered appearance through Ms. Kago, Muthama & Company but did not seem to have filed a response to the Memorandum of Claim. The trial too proceeded ex parte after the Court was persuaded that the respondent was duly served.
4. The claimant testified that he was paid a basic salary of Kshs.3,000 and 17% commission on total collection in 24 hours.
5. According to his evidence, his services were terminated on 31st May, 2014. He was told that his vehicle had high fuel consumption and he was therefore accused of siphoning fuel. He denied doing so. His supervisor told him the matter was under investigation. It was his evidence that he was never subjected to any disciplinary hearing and that his termination was verbal.
6. The matter proceeded ex parte hence the Court never had the benefit of listening to the respondent’s side of the story. The onus of proof of reasons for termination always rests with the employer. Further the matter proceeded ex parte hence the evidence of the claimant remain uncontested.
7. The relevant wages order placed salary for a driver in Nairobi at Kshs.13,201. 55 per month. The Court will therefore award the claimant the difference between this amount and the Kshs.3000 per month which the claimant was paid by the respondent for eighteen months.
8. The claimant will further be awarded:-
Kshs.
a. Leave allowance…………………………………............4,740. 00
b. One month’s pay in lieu of notice…………………….13,201. 55
c. Six month’s salary as compensation for
unfair termination of service……………….....………..79,209. 30
d. Costs of the suit
e. The respondent shall issue the claimant with a certificate of service.
9. It is so ordered.
Dated at Nairobi this 14th day of October 2016
Abuodha Jorum Nelson
Judge
Delivered this 14th day of October 2016
In the presence of:-
………………………………………….……for the Claimant and
……………………………………………..…for the Respondent.
Abuodha Jorum Nelson
Judge