[2018] KEELRC 498 (KLR)
The court found that the claimant admitted to not completing the assigned work and disregarded lawful instructions, which constituted valid grounds for termination under section 43 of the Employment Act, 2007. The court held that even if the respondent did not fully comply with the procedural requirements of section...
Source-derived case information.
- Citation
- [2018] KEELRC 498 (KLR)
- Parties
- Claimant: Bernard Marita; Respondent: Charm Flowers Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 682 of 2013
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim dismissed except for certificate of service; each party to bear own costs.
- Judges
- B Ongaya
- Legal Topics
- Unfair Termination, Summary Dismissal, Employee Misconduct, Notice and Hearing, Certificate of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bernard Marita
Claimant
Charm Flowers Ltd
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the dismissal of the claimant by the respondent was unfair.
- 2 Whether the claimant is entitled to the remedies sought including compensation, notice pay, and certificate of service.
Ratio Decidendi
The court found that the claimant admitted to not completing the assigned work and disregarded lawful instructions, which constituted valid grounds for termination under section 43 of the Employment Act, 2007. The court held that even if the respondent did not fully comply with the procedural requirements of section 41, the claimant's own misconduct was the primary cause of termination, making him undeserving of compensation under section 49. The court further found no evidence of underpayment or entitlement to notice pay. However, the claimant was entitled to a certificate of service as mandated by section 51 of the Act. The termination was therefore not unfair, and most remedies sought...
Court Disposition
Claim dismissed except for certificate of service; each party to bear own costs.
Orders
- The respondent to deliver a certificate of service in 7 days.
- Each party to bear own costs of the suit.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
CAUSE NO.682 OF 2013
BERNARD MARITA...........................................CLAIMANT
- VERSUS -
CHARM FLOWERS LTD................................RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday 30th November, 2018)
JUDGMENT
The claimant filed the memorandum of claim on 14. 05. 2013 through Njogu, Omwanza & Nyasimi Advocates. The claimant prayed for judgment against the respondent for:
a) Outstanding wages due to underpayment for the entire period of employment as particularised in the memorandum of claim.
b) Salary for August 2012 as particularised.
c) 3 months notice pay.
d) Damages for wrongful and unfair termination under sections 49 anf 50 of the Employment Act, 2007.
e) Punitive damages.
f) Certificate of service.
g) Costs of the suit.
The memorandum of response was filed on 18. 06. 2013 through Annie W. Thoronjo & Company Advocates. The respondent prayed that the claimant’s suit should be dismissed with costs.
The respondent employed the claimant as a general worker from 31. 12. 2009 to 02. 11. 20012. At termination the claimant was paid a gross of Kshs. 6, 111. 00 and a basic pay of 5, 588. 00.
The 1st issue for determination is whether the dismissal of the claimant by the respondent was unfair. The claimant testified that on 02. 11. 2012 he was assigned duty to make a drainage system outside a green house. He testified that he did not complete the job. He was told to complete the job the following day to facilitate the payment for the day. He was dissatisfied and his supervisor concluded that he was big-headed. He was summoned and he was given a termination letter. The Court finds that the claimant in his testimony admitted that he did not complete the assigned work. The respondent’s evidence was that when he was asked to finish the job he walked away suggesting he was disregarding the valid and lawful instructions to finish the job – he was summoned and terminated. The reason for termination is found to have been valid under section 43 of the Employment Act, 2007. In view of that undisputed reason as at the time of termination, the Court returns that a notice and a hearing under section 41 of the Employment Act, 2007 would be superfluous. Even if the respondent failed to fully comply with the provisions of section 41 of the Act, the Court returns that the claimant fully contributed to the termination by his own misconduct and he would be undeserving of any compensation in terms of section 49 of the Act. The Court returns that the termination was not unfair in the circumstances.
The 2nd issue for determination is whether the claimant is entitled to remedies as prayed for. The Court makes findings as follows:
a) The termination has been found not to have been unfair and the claimant is not entitled to the declaration and compensation under section 49 of the Act as prayed for.
b) The claimant was paid monthly wages as per the collective agreement and the alleged underpayment was not established.
c) As the termination was not unfair, the claimant is undeserving of the pay in lieu of notice.
d) The claimant is entitled to a certificate of service per section 51 of the Act.
In conclusion judgment is hereby entered with orders:
a) The respondent to deliver a certificate of service in 7 days.
b) Each party to bear own costs of the suit.
Signed, dated and delivered in court at Nairobi this Friday 30th November, 2018.
BYRAM ONGAYA
JUDGE