[2019] KEELRC 182 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO 393 OF 2014

CHARLES AKWERA ODUYA...............................................CLAIMANT

VERSUS

METAL CANS AND CLOSURES LIMITED............1ST RESPONDENT

LUPTRA MANPOWER AND HR

MANAGEMENT SERVICES.....................................2ND RESPONDENT

J U D G E M E N T

1. By a Memorandum of claim filed on 13th March,2014 the Claimant averred that he was employed by the 1st respondent at a gross salary of Kshs. 17,825. According to him, the 1st respondent refused to issue him with a written contract and instead delegated its responsibility to an outsourcing company the 2nd respondent. According to the Claimant, all staff recruitment process, data and payroll were all handled by the 1st respondent.

2. In the months of November, 2012, the 1st respondent’s director, one Mr. Dihir driven by racism, unlawfully terminated the claimant’s service. Prior to termination the Claimant was never warned of any wanting performance nor was he given any opportunity to correct and improve on his performance.

3. The Claimant averred that the respondent never proved any reason for terminating the Claimant’s service.

4. The respondent on the other hand pleaded that by an agreement dated 5th March,2013 it procured the services of the 2nd respondent, a personnel outsourcing company to provide them with employees who possess the necessary qualifications, competence and ability to handle the work available at the 1st respondents’ premises.

5. The 1st respondent denied that it handled the recruitment process, staff bio-data staff payroll and statutory deductions. According to the 1st respondent it was an express term of the agreement that the 2nd respondent would send an invoice to the 1st respondent every month for salaries and statutory deductions of all workers availed to the 1st respondent and upon payment, the 2nd respondent would pay all salaries and wages of its employees and make all mandatory statutory deductions.

6. The 1st respondent further pleaded that in August, 2013 it purchased a new digital printing machine which did not require human assistance as it was able to feed itself with metallic paper. The respondent further stated that it duly informed the 2nd respondent of the change in machine and requested them to terminate the employment of all the process workers including the Claimant. The 2nd respondent never entered appearance or filed a response.

7. In oral evidence before Court the Claimant stated that he was employed in July, 2007 as a general worker. His salary was Kshs. 7,800 and that he was earning Kshs. 17,825/= by the time he was terminated. According to him he was never told the reason for termination. He further stated he was never issued with any notice or warning.

8. In cross -examination he stated that the 2nd respondent came in 2012 and that it was to take over musteroll. It was his evidence that they asked about their service with Metal Crown (1st respondent) but were issued with a one-year contract by the 2nd respondent.

9. The Respondent’s witness Mr. Moses Bonde stated that he was a Quality Controller at the 1st respondent. According to him, employees were provided by Lupra (the 2nd respondent). The 1st respondent imported a digital machine which required less manpower. Most workers were therefore laid off as a result. The 1st respondent informed the 2nd respondent to handle the laid off workers.

10. The Claimant sued both respondents but only the 1st respondent filed a response to the Claim. The 2nd respondent never appeared nor filed a response to the claim. There is no evidence on record that the 2nd respondent was served.

11. The Claimant seemed to have been more pre-occupied with the 1st respondent yet the 1st respondent in their response exhibited manpower outsourcing agreement between itself and the 2nd respondent dated 5th March, 2013.

12. It could be true that prior to the Outsourcing agreement the Claimant may have been an employee of the 1st respondent as shown in the NSSF statement attached to the Memorandum of claim, but there is in existence an agreement to Outsource manpower between the 1st respondent and the 2nd respondent. The Claimant has not made any complaint about the changes of employment from the 1st Respondent to 2nd respondent. He insists he was an employee of the 1st respondent yet in cross-examination he said he was issued with a one-year contract by the 2nd respondent when he asked about his service with the 1st Respondent.

13. In his prayers before the County Labour Office, the Claimant does not claim any service from the 1st respondent. All he seeks is twelve months salary in lieu of notice, compensation for ½ extra hours worked and compensation for disturbance. The basis upon which these claims were brought have not been clearly demonstrated. In the circumstances the Court is not persuaded that the claim has been proved to the required standards and the same is hereby dismissed with no order as to costs.

14. It is so ordered.

Dated at Nairobi this 22nd day of November, 2019

Abuodha Jorum Nelson

Judge

Delivered this 22nd day of November, 2019

Abuodha Jorum Nelson

Judge

In the presence of:-

…………………………………………………………for the Claimant and

……………………………………………………………for the Respondent.

Abuodha J. N.

Judge