[2015] KEELRC 345 (KLR)

REPUBLIC OF KENYA

EMPLOYMENT AND LABOUR RELATIONS COURT ATNAIROBI

CAUSE NO. 28 OF 2012

(Before Hon. Lady Justice Hellen S. Wasilwa on 29th October, 2015)

CALEB ONGALE MUKUBA........................................................................CLAIMANT

VERSUS

MICHAEL WACHIRA T/A MAXIM SECURITY SERVICES................RESPONDENT

JUDGMENT OF THE COURT

1. The Claimant herein Caleb Ongale Mukuba filed his Memorandum of Claim on 17/1/2012 alleging wrongful dismissal from his employment and refusal to pay him his terminal benefits.

2. It is the Claimant’s position that he was employed by the Respondent as a guard in September 2007 earning a monthly salary of 3,500/= exclusive of house allowance. The Respondent later confirmed the Claimant on 10th November 2007. He avers that he worked for Respondent diligently for a duration of 6 months upto 30th April 2008 when the Respondents terminated his services without notice or payment thereof in lieu.

3. He seeks payment of his dues being 1 months salary in lieu of notice, salary for April 2008, prorata leave for 7 months, unpaid off duty, unpaid public holidays, salary underpayment, house allowance, overtime and service pay all totaling 154,865. 75/=. He avers that despite demand, the Respondents have refused to make good hence this claim. He also prays for damages and costs of this suit.

4. The Respondents filed their defence on 26/3/2012. It is their case that they terminated the Claimant’s employment but that the contract they had with Thika Motors Dealers to provide security was terminated and as a result the Respondent had to lay off the guard he had assigned to that contractor in turn. They also deny underpaying the Claimant within the period of his employment.

5. The Respondents have also submitted that the Claimant had filed a claim at Thika Law Courts being Criminal Case No. 5401 of 2009 which was dismissed. The Respondents want this claim dismissed accordingly.

6. I have considered the evidence of both parties plus their respective submissions. The issues for determination are as follows:

Whether this claim is time barred by virtue of Section90 of Employment Act.

Whether Claimant was terminated unfairly or onaccount of redundancy.

Whether due process was followed.

What remedies to grant in the circumstances.

7. On the 1st issue, the Claimant has stated that he was terminated on 30th April 2008. At the time, the law in existence determining the employment relationship was the Employment Act Cap 226 now repealed as the current Employment Act 2007 came into operation on 27th May 2008 by virtues of Legal Notice No. 61 of even date.

8. Cap 226 did not have a limitation period expressly provided and so the fall back position is Cap 22 Limitation of Action Act which prescribes the limitation period for matters under contract as 6 years. That being the position, by the time of filing this claim in 2012, the 6 years period had not lapsed from April 2008 and I therefore find this claim not time barred.

9. The Respondents had submitted that the claimant had filed a similar case before at Thika Law Courts being Criminal Case No. 5401 of 2009. I do not find that to be a true position as the case in Thika was criminal in nature and could not therefore have been instituted by the Claimant as a private citizen without authority to institute criminal cases.

10. On the 2nd issue, I note that the Respondent have pleaded that the claimant was not sacked but that their contract with Thika Motor Dealers ended hence the Claimant had no place to be assigned duty. The Claimant also agrees to this position. What stands out therefore is that the Claimant became redundant. Redundancy is defined under Section 2 of Employment Act as follows:

“Redundancymeans the loss of employment, job or career by involuntary means through no fault of an employee, involving termination of employment, at the initiative of the employer, where the services of an employee are superfluous and the practices commonly known as abolition of office, job or occupation and loss of employment”.

11. In this case then, the Respondent was obliged to adhere to the law as provided for under Section 40 of Employment. Section 40(1) of Employment Act provides as follows:

An employer shall not terminate a contract of service on account of redundancy unless the employer complies with the following conditions:-

Where the employee is a member of a trade union, the employer notifies the union to which the employee is a member and the labour officer in charge of the area where the employee is employed of the reasons for, and the extent of, the intended redundancy not less than a month prior to the date of the intended date of termination on account of redundancy;

Where an employee is not a member of a trade union, the employer notifies the employee personally in writing and the labour officer;

The employer has, in the selection of employees to be declared redundant had due regard to seniority in time and to the skill, ability and reliability of each employee of the particular class of employees affected by the redundancy;

Where there is in existence a collective agreement between an employer and a trade union setting out terminal benefits payable upon redundancy; the employer has not placed the employee at a disadvantage for being or not being a member of the trade union;

The employer has where leave is due to an employee who is declared redundant, paid off the leave in cash;

The employer has paid an employee declared redundant not less than one month’s notice or one month’s wages in lieu of notice; and

The employer has paid to an employee declared redundant severance pay at the rate of not less than fifteen days pay for each completed year of service.

12. It is apparent that the Respondent didn’t follow this procedure as provided and I make a finding that the termination of the Claimant on account of redundancy was unfair and unjustified. I therefore find for the Claimant and award him as follows:

1 months salary in lieu of notice being = 3,500/=

House allowance being 15% of 3,500 x 7 months = 525 x 7 = 3,675/=

Prorata severance for 7 months

= ½ months salary x 7 months

= ½ x 3,500 x 7 = 12,250/=

Salary underpayment and overtime pay is not proved and is not awarded.

Leave pay being for 7 months = 21 days/30 x 3,500= 2,450/=

12 months salary as compensation for unlawful redundancy = 12 x 3,500/= 42,000/=

Total awarded = 63,875/= plus costs.

The Claimant should also be issued with a Certificate of Service.

Read in open Court this 29th day of October, 2015.

HON. LADY JUSTICE HELLEN WASILWA

JUDGE

In the presence of:

Ogeso holding brief for Nyabena for the Claimant – Present

Wachira & Company for Respondents – Absent