[2018] KEELRC 1194 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO.1082 OF 2016

CALISTER NYATICHI ORIKU........................CLAIMANT

VERSUS

EPCO BUILDERS LIMITED.......................RESPONDENT

JUDGEMENT

Issue in dispute – wrongful and unfair termination of employment and non-payment of terminal dues

1. The claimant is a female adult and the respondent a company carrying out business in Nairobi. In June, 2012 the claimant was employed by the respondent as a Caretaker at a daily wage of Kshs.300. 00 and later in 2013 this was increased to Kshs.320. 00 per day. The total monthly pay became Kshs.9, 600. 00.

2. The claim is that on 14thh January, 2014 the respondent wrongfully terminated the claimant’s employment, there was no reason given and terminal dues were not paid. The claimant is seeking payment of;

1) One months’ notice pay at kshs.9, 600. 00;

2) Annual leave for 19 months Kshs.10,640. 00;

3) House allowance Kshs.27,360. 00;

4) Service pay Kshs.4,800. 00; and

5) Compensation.

3. The claim is also that upon employment, the claimant was never issued with a letter of appointment or contract of service. the respondent failed to deduct and remit statutory dues to NSSF and NHIF. Termination of employment was contrary to the law as there was no hearing or notice given. The dismissal from employment was not justified and thus amounted to unfairness.

4. The claimant testified in support of her claim. Her evidence was that in June, 2012 she started work as a casual employee as a plastering person. She then took up duties of roofing and shutters from July to September when she was taken up full time. As the respondent was putting up houses on large scale, the claimant was given keys to the various houses to open for other workers to do their duties and she would take a record of what had been done therein. This included plumbing, fittings and cleaning. On 23rd December, 2012 the respondent closed for the holidays.

5. In January, 2014 the claimant reported to work and for a week, all was well. On the second week, the claimant fell sick. She called a colleague for help. The security guards at the gate came for the claimant and she was taken to hospital for 2 days. When the claimant reported back to work, she got information that management had directed she should not be allocated work. Mr Hassan was in charge. The claimant was directed to go back home. She went to seek further treatment.

6. Later the claimant went to the Labour office and when the respondent was summoned, they did not attend. The respondent has failed to pay terminal dues.

7. The claimant called her witness Stella Kerubo Ongera who testified that she was working with the claimant in June, 2012 while at the respondent company. Work reduced and she had to leave. When house owners started taking up residence, the claimant recalled her to help with cleaning duties. One day she found the claimant crying at the gate after she had been sacked by the respondent.

Defence

8. In response, the respondent’s case is that there was no wrongful termination of employment with regard to the claimant. The claimant was taken ill and disappeared from work and never resumed her duties. The claims made are not due and should be dismissed with costs.

9. In evidence, the respondent called Bernard Owino as the witness.

10. Mr Owino testified that he is the human resource manager for the respondent with duties to employ, effect termination of employment and keep work records. The respondent is involved in construction work with its head office in industrial area, Nairobi. There are different construction sites with employee’s causals at each site.

11. The claim by the claimant that she was a Caretaker at a site is not correct as this must have been done by the agent allocated at her site and who knew what kind of work had to be done. Due to the nature of work undertaken by the respondent, agents at each site are allowed to employ own staff. Upon completing a given site, some employees are recalled to the office for redeployment and employment must end with each project completion.

12. All disciplinary cases are taken to the agent on site. For the respondent employees, such must be in writing. All cases of misconduct must be in writing as well. The respondent has no record of the claimant. There was no dismissal in January, 2014.

13. Mr Owino also testified that based on the records, all site employees were paid using a check list. When he checked the records, he noted the claimant’s name as submitted by the agent Mr Kassim who said that the claimant had stopped attending work. The claimant had been paid for days worked.

14. The claimant’s evidence is of the nature that she joined the respondent in June, 2012. She was a casual employee doing plastering duties. From September she started doing other duties on full time basis. On 23rd December, 2012 the respondent closed office for the holidays.

15. The next portion of evidence is that in January, 2014 the claimant resumed duties and in the second week she became unwell. She was taken to hospital for 2 days. Upon returning to work she was directed to go back home.

16. There is no record of 2013 at all.

17. The claimant called Ms Ongera as the witness. This witness stood out as truthful and a very honest person. Her evidence was that the claimant joined the respondent in June, 2012 and found her in the company. Work reduced and the witness had to leave employment. She was however recalled by the claimant for other duties to help with cleaning when the house owners took up residence. Later she found the claimant at the gate crying on the grounds that her employment had been terminated.

18. Ms Ongera also testified that the respondent is a construction company building houses for sale. Upon completion, owners take them up and the respondent moves to a new site. In her case, work reduced and she had to leave. By January, 2014 she was not working for the respondent.

19. On 29th September, 2017 the court directed the respondent to submit all work records in accordance with section 10 of the Employment Act, 2007 and section 20 of the Employment and Labour Relations Court Act, 2011.

20. On 31 October, 2017 the respondent filed a work record with regard to the claimant and other employees. The records includes payments for various amounts and dates for the entire year of 2013. Some are block amounts for Kshs.1, 600. 00 for 12th January, 2013, Khs.1, 900 paid on 19th January, 2013, Kshs.1, 900. 00 paid on 26th January, 2013, and similar amounts paid throughout the year. I take these were weekly payment paid by the respondent, EPCO Builders to the claimant for various duties. The payment relates to works at EABS Phase III.

21. I take the above as evidence to support the claimant’s case that she was in the employment of the respondent for a period of over one year staring as a casual in June, 2012 to sometime in January, 2014. Such work records are kept by the respondent as part of the statutory requirements under section 10 read with section 73 and 74 of the Employment Act, 2007.

22. Where the respondent had allocated the site where the claimant was working to an agent and the agent was the responsible employer, nothing stopped the respondent from applying to have the agent as the employer in this case. With the payments de tot eh claimant having been settled by the respondent, such having been done throughout a period running for over a year, by operation of the law and in my reading of section 37 of the Employment Act, 2007, the claimant was effectively the employee of the respondent. any claim that arise and is due, such must be settled by the respondent.

23. With regard to the alleged termination of employment, the claimant testified that upon resuming duty in January, 2014 she got sick and had to attend hospital. She was away for several days. When she returned, she was not allocated work and was told to go home. She went to seek further treatment.

24. An employee who is sick, unwell or requires attending and seeking medical attention has the right secured under section 30 and 34 of the Employment Act, 2007. Where the employee is absent from work due to sickness and has proceeded on to seek medical assistance, she must inform the employer of her circumstances within a reasonable time. In this regard, the law allows the employee to use a third party to communicate his circumstances to the employer. Such is to allow an otherwise seriously sick employee have the chance to let the employer know that they are unable to be at work following sickness as held in Dorothy Ndung’u versus Machakos University [2016] eKLR.

25. The court while addressing a similar issue as herein in the case of Stephen Kariuki and another versus Michael Njoroge and Sandstone Logistic Limited/Cylinder Works Limited, Cause No.888 of 2010held that;

[where an employee is sick and away from work] Upon resumption of duty, an employee who has been sick must submit a medical certificate from an authorised medical practitioner. The essence of section 30 and 34 of the Act is essentially to give an explanation for absence from work by providing the requisite documents as otherwise, absence from work without a just cause is a subject for summary dismissal under section 44(4) of the Employment Act, 2007.

26. In this case, I have no doubt that the claimant got sick and attended hospital in January, 2014. However, the duty in law is placed upon the claimant as the one alleging having been sick and thus absent from work to source for the medical certificate from a medical practitioner and present it to the employer. Otherwise, absence from work without due cause is a matter subject of summary dismissal under section 44(4) of the Employment Act, 2007.

27. The claimant does not make any effort, even in these proceedings to demonstrate whether indeed she was sick or absent from work for a reasonable cause. Where the claimant received treatment in hospital for two days, the treatment records would have vilified her in this regard. Without production of such evidence to her employer, the respondent, the court cannot come to the aid of the claimant. The resulting termination of employment was therefore justified. The respondent had a reasonable ground of absence from duty to effect dismissal.

28. Even where termination of employment is justified, the payment(s) due for work done and the benefits due are payable.

29. The annual leave earned and not taken is due. The claimant was on full fame employment since September, 2012 and left employment in January, 2014. Such is a period of 15 months. In accordance with section 28 (1) of the Employment Act, 2007 which provides that;

28. Annual leave (1) An employee shall be entitled—

(a) after every twelve consecutive months of service with his employer to not less than twenty-one working days of leave with full pay;

(b) where employment is terminated after the completion of two or more consecutive months of service during any twelve months’ leave-earning period, to not less than one and three-quarter days of leave with full pay, in respect of each completed month of service in that period, to be taken consecutively.

30. For the full year, the claimant had earned 21 days of leave with full pay. For the 3 more months at work the claimant earned 5. 2 days of leave. On a wage of Kshs.9, 600. 00 per month, the annual leave due is Kshs.11,264. 00.

31. House allowance is due at 15% of the paid wage for the 15 months of full time employment amounts to Kshs.21,600. 00.

32. Service ay is due in accordance with section 35 of the Act where there are no statutory dues deducted and or remitted to the relevant body. Such duty is vested with the employer to ensure the deduction and remittance of all statutory dues. Where the claimant was in the employment of the respondent contentiously and for a period longer than a year and no remittances were made, service pay is due. The claimant is awarded Kshs.4, 800. 00.

Accordingly, judgement is hereby entered for the claimant for the payment of due annual leave at Kshs.11, 264. 00; house allowance at Kshs.21, 600. 00 and service pay at Kshs.4, 800. 00.

Each party shall pay own costs.

Read in open court at Nairobi this 20th day of April, 2018.

M. MBARU JUDGE

In the presence of:

Court Assistant:………………………….

…………………………………………….

……………………………………………