[2018] KEELRC 2359 (KLR)
The court found that the respondent failed to provide notice, reasons, or a hearing prior to terminating the claimant's employment, and did not pay terminal dues. The claimant's evidence was unchallenged due to the respondent's non-participation. However, the court noted inconsistencies in the claimant's pleadings...
Source-derived case information.
- Citation
- [2018] KEELRC 2359 (KLR)
- Parties
- Claimant: Chaka Nyando Chidunga; Respondent: Cargill Kenya Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 373 of 2017
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim partly allowed
- Judges
- J Rika
- Legal Topics
- Unfair Termination, Notice Pay, Annual Leave Entitlement, Service Pay, Statutory Deductions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chaka Nyando Chidunga
Claimant
Cargill Kenya Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's employment was unfairly terminated contrary to the law.
- 2 Whether the claimant is entitled to salary in lieu of notice, annual leave pay, compensation for unfair termination, and service pay.
- 3 Whether inconsistencies in the claimant's pleadings affect the reliefs sought.
Ratio Decidendi
The court found that the respondent failed to provide notice, reasons, or a hearing prior to terminating the claimant's employment, and did not pay terminal dues. The claimant's evidence was unchallenged due to the respondent's non-participation. However, the court noted inconsistencies in the claimant's pleadings regarding salary and period of service, and resolved these by relying on the figures and facts stated in the pleadings rather than oral evidence or submissions. The court held that the termination was unfair and awarded the claimant salary in lieu of notice, compensation for unfair termination, annual leave pay for five years, and service pay for five years, totaling Kshs....
Court Disposition
claim partly allowed
Orders
- Termination was unfair.
- Respondent to pay claimant 1 month salary in lieu of notice at Kshs. 10,954.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR
RELATIONS COURT AT MOMBASA
CAUSE NUMBER 373 OF 2017
BETWEEN
CHAKA NYANDO CHIDUNGA ………………..........….CLAIMANT
VERSUS
CARGILL KENYA LIMITED…………………….….RESPONDENT
Rika J
Court Assistant: Benjamin Kombe
Omondi Waweru & Company Advocates for the ClaimantNo appearance for the Respondent
____________________________
JUDGMENT
1. The Claimant filed his Statement of Claim on 10th May 2017. His Statement of Claim is erroneously indicated as Cause Number 373 of 2016. The Court amends this, and the record shall uniformly indicate the correct Cause Number as 373 OF 2017.
2. He states he was employed by the Respondent Company on 2nd April 2010. He blended and loaded tealeaves. He was paid a monthly salary of Kshs. 27,000 throughout. His contract was terminated by the Respondent on, or about, 22nd August 2015. He was not given notice of, or reasons for, termination. He was not heard. He was not paid terminal dues. He prays for Judgment against the Respondent for:-
a. 1 month salary in lieu of notice at Kshs. 10,954.
b. Annual leave pay for 11 years at Kshs. 84,351.
c. Equivalent of 12 months’ salary in compensation for unfair termination at Kshs. 131,456.
d. Service pay at Kshs. 297,000.
Total….Kshs. 523,762
e. Unpaid salary up to the date termination letter is issued.
f. Costs.
3. Notice of Summons and copy of the Statement of Claim, are indicated in the Affidavit of Service sworn by Process Server Michael Otieno on 24th August 2017, to have been served upon the Respondent on 16th May 2017. The Respondent’s Human Resources Manager received the Court Processes, signed and stamped on the Return Copies, in acknowledgment of receipt. The Respondent did not file any Response. Hearing went on ex parte, on 11th December 2017.
4. The Claimant testified he was employed by the Respondent as pleaded in the Statement of Claim. He weighed tea, in addition to blending and loading. He was paid Kshs. 900 per day or Kshs. 27,000 monthly. N.S.S.F and other statutory obligations were not honoured by the Respondent. He testified he was not given notice of, or valid reasons for, termination. He was not paid terminal dues.
The Court Finds:-
5. There is no Response filed. The Statement of Claim is unchallenged. The evidence given by the Claimant is unquestioned. The Court has no reason to disagree with the Claimant’s position that: he was employed by the Respondent Company as a tea Loader/Blender/Weight Officer; his contract was terminated by the Respondent on, or about, 22nd August 2015; there was no notice of termination issued upon the Claimant; no reasons were given for the decision; and the Respondent did not pay any terminal benefits to the Claimant.
6. There are however, inconsistencies in the Claimant’s recollection of his employment history and his terms and conditions of service.
7. Paragraph 8 of his Statement of Claim indicates 1 month salary in lieu of notice at Kshs. 10,954. The Claim was not amended. The amount pleaded in compensation for unfair termination is pegged on a monthly salary of Kshs. 10,954. The Claimant did not explain to the Court why he revised this figure to Kshs. 27,000 in his evidence and submissions.
8. The figures itemized and totaled in the Submissions, are not consistent with those contained in the Pleadings. It is submitted at page 1 of the Claimant’s Submissions that, the Claimant relies on his Statement of Claim filed on 10th May 2016, in establishing his Claim.
9. The date of employment is not clearly stated. Annual leave pay is sought based on 11 years of service. The date of termination is in 2015, which would place the date of employment 11 years back, in 2004.
10. Elsewhere, the date of employment is shown as 2nd April 2010, giving the Claimant a service period of 5 years, rather than 11 years. The inconsistencies were not addressed by the Claimant in his oral evidence.
11. The Claimant acknowledges termination of employment took place on or about 22nd August 2015. He is not entitled to arrears of salary ‘’up to when a termination letter will be issued.’’He is aware termination decision was made, notwithstanding that no formal communication of the decision has been made to him.
12. The Court takes guidance from the Pleadings and allows the Claim in terms below:
IT IS ORDERED:-
a. Termination was unfair.
b. The Respondent shall pay to the Claimant 1 month salary in lieu of notice at Kshs. 10,954; equivalent of 12 months’ salary in compensation for unfair termination at Kshs. 131,448; annual leave pay of 5 years [105 days] at Kshs. 44,237; and service pay at 15 days’ salary for 5 complete years of service at Kshs. 31,598- total Kshs. 218,937.
c. Costs to the Claimant.
d. Interest allowed at the rate of 14% per annum from the date of Judgment till payment is made in full.
Dated and delivered at Mombasa this 8th day of March 2018.
James Rika
Judge